John Donvan:

Hi, everybody. Welcome to Open To Debate. I’m John Donvan, and in this episode, we are looking at the Supreme Court. And one word that you will hear a lot when the role of our nation’s highest court is up for discussion. For example, when somebody’s under consideration for a seat on the court like Amy Coney Barrett in late 2020, and Senator Ben Sasse asked her about that very word.

Speaker 2:

When you define yourself as an originalist, what does that mean?

Speaker 3:

Right. So originalism means that you treat the Constitution as law because it commits these texts to writing. And in interpreting that law, you interpret it in accord with the meaning that people would have understood it to have at the time that it was ratified.

John Donvan:

So yes, originalism original meaning. So what is it and why does it attract so much controversy? Who is for it? Who’s against it? Why does it matter? Here’s how we’re gonna debate the question. Should the Supreme Court focus on the original meaning of the Constitution? Let’s meet our debaters arguing that the answer to that question is yes. American legal scholar, professor of Constitutional law at Georgetown University in Washington, and director of the Georgetown Center for the Constitution, Randy Barnett. Welcome, Randy, to Open To Debate.

Randy Barnett:

Great to be here, John,

John Donvan:

And arguing that the answer to that question should be no, Associate Dean and professor of law at the Law School across town, George Washington University, Thomas Colby. Thomas, thanks so much for joining us on Open To Debate.

Thomas Colby:

Thanks so much for having me.

John Donvan:

So before we get started, I, I know both of you are passionate about this topic, and I just want to get a sense of why that is. So, Randy, what, what are the stakes for you in this argument about originalism?

Randy Barnett:

Well, the stakes are the rule of law, the proper rule of judges in a Constitutional republic. Um, the oaths that public officials take to obey the Constitution. I care about a, a Constitution. I care about a country that’s governed by a Constitution and not where the governors, uh, pretty much get to do what they want.

John Donvan:

Thank you very much for that, uh, Randy. And Thomas, it’s the same question to you in a sense, why did you accept our invitation to this debate? Why do you feel it’s worth having?

Thomas Colby:

Well, my answer may not be all that different from Randy’s. I, I care because this is profoundly important. It’s profoundly fascinating. I think I reach different conclusions about Ran- uh, than Randy does about what the answer ought to be. But I, I too believe very strongly in the rule of law, and I care very much about justice. I wanna make sure that w- our Constitution continues to play the role of, of ensuring liberty and equality in the 21st century.

John Donvan:

All right. It’s great to know why both of you care, but now let’s get to what both of you think. Randy, you are up first, you are answering yes to the question, should the Supreme Court focus on the original meaning of the Constitution? Tell us why.

Randy Barnett:

Well, let me first define what originalism is. Uh, we have Justice Barrett’s, uh, definition, which is not a bad one, but I mean, I can define originalism in one word, and that is that the meaning of the Constitution should remain the same until it’s properly changed by amendment. That’s one sentence. The meaning of the Constitution should remain the same until it’s properly changed by amendment.

Uh, buried within that single sentence are two different claims. One is a descriptive claim about the way language works. And that is that when you pro- when you propose a Constitution, when you publish a text, when you published a, a contract, um, those words on the page have a meaning at the time they’re promulgated at the kind, at the, at the time they’re adopted.

Um, and then those were, that meaning is fixed unless it’s changed down the road. Um, and then there’s a normative claim, and that is that, uh, judges ought to follow. All Constitutional actors ought to follow the meaning that’s fixed in the written Constitution. Um, now that’s a normative argument, and there’s going to be different arguments that you’ll have to make to make out that normative claim.

Um, there’s at least five normative reasons or re- good reasons why, um, Constitutional actors ought to follow the meaning that’s fixed in the text of the Constitution. The first is the consent of the govern that, um, that the Constitution was, um, democratically, uh, adopted as were all the amendments that changed the Constitution properly after that.

Uh, the second is the rule of law that the Constitution provides, uh, public meaning that the public can understand, um, and has access to. It’s not some secret thing that can only be done by experts. The third has to do with putting judges in their appropriate spot in the rule of law, which in a separation of powers, and that is judges are supposed to apply the law. They’re not supposed to make the law or change the law, um, that’s supposed to be done by other branches of the government. It’s the legislature that’s supposed to legislate, not the judges.

Um, there’s the consent of the governors, those who govern us, and each and every person who claims power under the Constitution has to take an oath to uphold the Constitution. And if the meaning of the Constitution is just whatever the person who takes the oath says that it means, then that oath is meaningless. And I don’t think power should be turned over to people who take a meaningless oath.

And finally, there is the, the idea of justice, which Tom has correctly focused on. Um, and that is that if the Constitution, the substance of the Constitution is above a certain threshold of justice, then it should be followed, uh, for the same reason that any just law should be followed, because doing so is going to lead to more just outcomes than not doing so.

Uh, and because I be- I believe that first come rights, the rights of the individual, and only then comes government, the way to hold government, um, to the protection of these rights so that the government that’s created to e- to enforce these rights does not itself violate it. You need to confine that government to the rule of law as embodied in a written Constitution interpreted according to its original meaning.

John Donvan:

Thank you very much, Randy. And Thomas now is your turn. Your answer to the question is no, and that is because…

Thomas Colby:

Of course, the Supreme Court should care about the original meaning of the Constitution. But should it focus on it narrowly into the exclusion of all else? No. Why would it? The provisions of our Constitution that generate the most controversy today, the individual rights and governmental powers that we fight about so much that resolve the contentious issues in our society. They’re written in broad, abstract, open-ended terms, majestic generalities as the first Justice Jackson famously put it.

Freedom of speech, free exercise, and non-establishment of religion, due process of law, life, liberty, property, equal protection of the law. The Ninth Amendment just says there are other rights without specifying what they are. These are abstract concepts. They could be read broadly, narrowly, or idiosyncratically in a thousand different ways. Why should we today be bound by the understandings of men who lived 100 or 200 years ago as to the true meaning of liberty and equality?

For one thing, despite what many originalists insist, we can’t privilege the original meaning on the ground, that that meaning and that meaning alone has some sort of democratic legitimacy. The process for enacting and ratifying the Constitution was hardly democratic and inclusive. The fantasy that the Constitution was the product of a great coming together of all the American people collectively, that’s just a myth.

The Constitution was drafted and ratified exclusively by rich land owning white men. Many of whom counted human beings among their property. Nobody else was allowed to vote or even to attend the conventions and express their opinions. And in any event, even if the Constitution did enjoy democratic legitimacy 100 or 200 years ago, which it didn’t, why should that require us to follow its original meaning today?

Not a single person who is alive today voted for the Constitution. Why should we today give it the meaning preferred by those who voted for it centuries ago? Why should we today be ruled by the dead hand of our ancestors? Why should we be bound today by the conclusions reached a century or two ago by a small privileged minority of slave holders, by people who believe that women belong under the legal control of their fathers until they get married, at which point they fall under the legal control of their husbands?

Those people have been dead for centuries, and so have a lot of their values. Why should we be bound today by what they thought was the so-called true meaning of equal protection or liberty or due process of law? Their views about the meaning of the fundamental Constitutional guarantees of freedom, justice, and equality are completely out of step with ours. In some cases, they’re morally abhorrent by today’s standards.

What matters for us is what these abstract concepts and principles set out in the Constitution, freedom of speech, equal protection of laws, et cetera, what they mean to our society today. We can figure that out for ourselves. We must figure that out for ourselves. Let be be ruled by the dead hand of a distant and sometimes shameful past.

And to do that is not to defy the rule of law or the commitment to a written Constitution, nor is it to amend the Constitution illegitimately by judicial fiat. It is to preserve and respect the Constitution. Indeed, perhaps, ironically, interpreting the Constitution to keep up with evolving societal values is actually the best way to be genuinely true to the Constitutional text and the spirit of the document and even to the intent of the framers.

The Constitution was intentionally and objectively drafted with language broad enough to evolve with the times. It was consciously painted with a broad brush. There’s a reason why the Constitution was written in broad, vague, abstract terms like freedom of speech and due process of law, rather than just giving us a laundry list of detailed and precise rights and powers.

Ambiguity enables compromise. The Constitution required super majority support among the participants to enact or amend, but there is and has never been super majority consensus in our country on divisive issues like race and religion. Therefore, the framers settled on under determined and open-ended phrases that they could all agree upon in the abstract, even though they vehemently disagreed about what effect those provisions would have had in practice.

That was an intentional choice on the part of the framers. And it’s a choice we should respect today. To try to sort through the conflicting and incomplete historical record in search of a universally agreed upon narrow original meaning is a futile quest. Whatever you come up with is much more likely to reflect your own personal biases than it is to capture some sort of historical consensus that in fact, never existed. At anything other than a level of generality to abstract to resolve modern controversial cases.

The framers did not agree amongst themselves on an original meaning, and they did not mean to tie us for all time to the cultural morays of the 17th, 18th, 19th century. The Constitution that they gave us drafted as it is in majestic generalities, it’s inherently adaptable over time to address new challenges that didn’t exist in the 1780s and 1790s, and to reflect society’s evolving and maturing values in a changing world.

That’s the whole point of the Constitution, that’s the genius of it. By interpreting the Constitution to be more adaptive, we’re actually reflecting the flame’s, the framer’s wishes, respecting the abstract nature of the Constitutional text, and ensuring the functionality and success of our nation into the future and protecting liberty and equality.

John Donvan:

Thank you, Thomas. And, uh, and again, thank you, Randy. But we’re gonna come up to a break in just a moment. But before we do, just a little bit of a look ahead. I’m interested to hear from each of you. I’ll start with you first, Randy. What did you hear from your opponent in this debate that you look most forward to taking on in his argument?

Randy Barnett:

Yes, the Constitution has a completely abstract meaning to which we can attach all kinds of different meanings. Um, I just think that’s, uh, a basic, basically inaccurate, uh, inac- inaccurate reading of what the Constitution actually says.

John Donvan:

Thomas, how about the same question for you going back the other direction?

Thomas Colby:

Um, I think I would like to focus maybe mostly on the notion that originalism probably the, the flip side of what Randy just said, the notion that originalism is a means of constraining judges to prevent them from reading their own policy preferences into the Constitution.

John Donvan:

The word constraint has come up already in the opening arguments. And Randy, I, I think your point is that at, at some level, the, the courts and the Supreme Court needs constraints. And, and that originalism this idea of trying to base things, at least initially on what is understood to be the original public meaning of the Constitution is an important function in itself. So why, just start with why a constraint is a good idea in the first place?

Randy Barnett:

Well, because the rule of law is a good idea, and if you actually had a Constitution, I, I, I, I believe in equality, but there is no equality clause in the Constitution. I believe in liberty, but there is no liberty clause in the Constitution. There are specific phrases that were chosen that had a meaning. Um, the meaning, um, is ascertainable. Um, and that’s the meaning that should be followed.

Um, the resolution that we are debating is whether the court should focus on original meaning. Um, and to, to, to answer that question in affirmative, you simply have to acknowledge that the court should follow the original meaning when it can be determined.

John Donvan:

All right. We will be diving into our discussion where our question is, should the Supreme Court focus on the original meaning of the Constitution right after this.

Welcome back to Open To Debate. We are looking at this question, should the Supreme Court focus on the original meaning of the Constitution?

Thomas Colby:

I think this notion that, that the rule of law sort of requires a commitment to originalism for one thing, going back to the, the point that Randy wanted to contest originally, you know, I if, if you accept that the Constitution, the, the provisions, some principle rights granting clauses of the Constitution have a highly abstract, under determinative original meaning, then when non-originalist judges or living constitutionalist judges are, are, are, they’re not changing the meaning of the Constitution. They’re simply recognizing that the open-ended original meaning can produce different results as the world changes.

And, and therefore they’re not defying the rule of law. But beyond that, at a deeper level, the notion that non-originalist judges are impermissibly changing the meaning of the Constitution, that depends on your baseline. To take an, an example that, that, you know, maybe only somewhat hypothetical. For nearly 150 years, our courts, our legal system, our country, have understood the 14th Amendment to enact a core principle that the government cannot discriminate invidiously on the basis of race.

But let’s imagine that next year, some enterprising legal historian digs through a bunch of musty and forgotten old law books buried in the 19th century library vault somewhere, and finds out that really the legal terms in the 14th Amendment actually best were understood in 1868 to tolerate ra- racial discrimination and legislation.

Well, what now should we just cast aside 150 years of precedent, 150 years of legal progress and racial justice? I think that would be ludicrous. The 14th Amendment is phrased in abstract terms. For 150 years, interpreting those abstract terms, our Constitutional law has reflected a deep commitment to racial equality. That is the law today. That is the meaning of the Constitution today.

To me, changing that law and that meaning now based solely on new historical research into forgotten events that occurred and meanings that might have been understood generations ago, that would be, ill- illegitimate that would be the affront to the true rule of law.

John Donvan:

Okay. I need to let Randy back into this conversation. So Randy, jump on in please.

Randy Barnett:

Yeah, I think I’ve just won this debate. Uh, Tom has just, um, contended that we should follow the original meaning of the text of the Constitution. That original meaning is very abstract and leads, uh, leaves a lot of discretion today’s, today’s Constitutional makers. That’s a descriptive claim about what the meaning is. It isn’t a normative claim about whether we should follow it. He thinks we should follow it.

And then he adds to that, um, concession to original meaning. Um, a claim about following 150 year old precedents, um, where all the people who author those precedents are dead. Um, there is a difference. They aren’t a ratifying public who are dead. They are individual justices who are dead or maybe individual lawmakers w- who are dead. But he has just asserted the dead hand of the past in order to, um, answer the originalism argument that he has also asserted.

So there, not only have I, have I won the debate on originalism, uh, but he has, he has, um, contradicted himself on, um, on the dead hand argument that he led off with.

Thomas Colby:

No, I, I don’t think so at all. What I’m saying is that for 150 years and to this moment, we have understood our law to be a certain thing. So in part, look, if, if, if I’m right, that the original meaning of the provisions we care about is so abstract that it doesn’t answer any of the questions that we care about, then, then, then, yeah, it’s fine if we follow the original meaning, because that doesn’t actually co- commit us to any results that I think are problematic.

But the point I was making was that even if we could suddenly uncover some original meaning that, that we could say, oh, technically, yeah, that was the original meaning back then. Wow, we just found this new history. But for, for, for the, my entire lifetime, for your en- entire lifetime, the Constitution has never been understood to mean that.

Then to me, the meaning that matters is the meaning that you and I live under. Not some meaning that, that was, that was just uncovered by a, a genius new historian who dug it out of a vault somewhere. So that’s not about committing ourselves to the, to the dead hand of the past. It’s about not committing ourselves to the dead hand of the past.

John Donvan:

So, so the, the, the idea of originalism as a, as a dynamic idea in the conversation is, is really only about 40 years old. And back in the late 70s and the early 80s, as I understand it. The original proponents of the term who adopted the term that had been floating around and, and, and, and, and embraced it. We’re talking about, we have to figure out what the framers had in mind, what their intent was.

But that now the thinking about originalism has moved on to be focused on actually, what did the words mean? What did the words mean at the time that they were written? Which is, it could be an overlapping question, but is a separate question. And I want to ask you, Randy, as the proponent of originalism to share with us who are not law professors, how do you figure out what are, what are the methods for figuring out what the words meant with, with clarity and, and some high degree of certainty?

Are you going to dictionaries? Are you reading what people were saying at the time? I mean, literally, how do you, how do you determine what the general public would’ve thought at a time when in fact, lots of people were, for example, not literate?

Randy Barnett:

Well, it’s all of the above. You look at, you let-

John Donvan:

Mm-hmm.

Randy Barnett:

… private letters are reflective of what the meaning of words are. Today if we look at the word dollar, we would think it’s a Federal Reserve note that we carry in our wallet, but there were no Federal Reserve notes. Then a dollar was a unit of silver c- associated with the Spanish silver dollar. This is not that hard to find out. Um, but that’s what the word dollar meant.

Finally, I’ll just say domestic violences in Article four, which allows, uh, for the government to be called out to suppress, um, uh, domestic violence. Today if you use the word domestic violence, it would mean spouse abuse, but that’s not what it means in the Constitution. It meant insurrection or riots in the streets.

Um, this is not that mysterious, uh, there are certain phrases that have been much debated in the literature today. Um, but the, I have a book called The Original Meaning of the 14th Amendment. It goes through each of the clauses. Um, and these meanings that I think are the original meanings have been known for a long time. But then others who wish to make a different claim will argue that they mean something else, and then we have to resolve that.

John Donvan:

All right, Thomas, I know that you’re not arguing that the exercise to find the original meaning is, uh, should be the highest priority. I get that. But nevertheless, I’m curious to hear your response to what the methods are to determine that. Do you, in, in other words, Randy is saying you can find, if you wanna find the original meaning, there’s a way to do it.

Thomas Colby:

I, I, I don’t disagree with the methods. Uh, you know, Randy has spent a, a, a career doing it and doing a very good job of it, and not, not only sort of doing it on the ground, but thinking about what are the best methods for doing it. And, and I, I, I have a lot of respect for that. I, I think what I dispute is the notion that putting into place the methods that we have, the methods that Randy has described, we’re gonna get answers. I’m curious. We can get answers to what domestic violence, we can get answers to what a senator means.

What I’m concerned about are the clauses that we tend to fight about, the more abstract open-ended clauses, like equal protection privileges in her immunities due process, the word liberty in the due process clause. And, and I think here you can determine an, in, an, an original meaning, so long as you recognize that this is a broad term that, that that referred, you know, broadly and vaguely to concepts of liberty or equality.

But, uh, it’s no more specific than that. You know, with regard to the privileges or immunities clause of the 14th Amendment, which is a, a very elusive, possibly very important part of the Constitution. There have been five or six major books published in the last 10 years by serious thoughtful scholars, each of whom reaches a completely different conclusion as to what the original meaning of that clause is.

And I think that tells us, you know, maybe one of ’em is right and five of ’em are wrong, but I think it’s more likely what it tells us is that this is not something that we can determine from objectively from the history, unless we’re willing to say, well, it just refers broadly and abstractly to rights.

John Donvan:

One thing I think that the general listener to this program might be wondering is what, what are the real world rubber hits the road consequences of whether the court is guided by originalism or not? And so, Thomas, what- what’s wrong with the court ref- s- s- searching for and basing its decisions initially off of the original meaning of the words to the, the degree that they can be determined? What, what goes wrong with that?

Thomas Colby:

I think the answer is that in practice, originalism in the courts is very different. It goes much farther than what Randy has articulated. It’s not just a commitment to some abstract original meaning. It’s of commitment to the narrow in- uh, intentions and the expectations of the framing generation. Originalism in practice in the courts is basically asking, how would the framers have decided this case?

So for a couple examples, Justice Scalia could reject a right to gay marriage by flatly declaring in his dissent in that case. When the 14th Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the Constitutionality of doing so that resolves these cases. And he could reject the 14th Amendment right to be free from sex discrimination by flatly declaring. Nobody ever thought that that’s what it meant. Nobody ever voted for that.

Originalism in practice, i- i- is much less sophisticated than the originalism in theory being honed by scholars like Randy. The judge’s originalism, the originalism that’s actually being used by people in power to affect all of our lives, it, it’s hugely impactful. What what what is at stake here is, is, is, is a lot. You know, just last year in the course of a single week, the Supreme Court effectively gutted the separation of church and state, completely tied the government’s hands to enact almost any kind of gun control regulation and completely eliminated the right to an abortion.

I don’t think any of those cases were the result of sophisticated originalist analysis. They were the result of sort of a crude unprincipled reliance on history. And I think a lot of hi- historians will tell you the court got their history wrong in all three cases, but they happened, and they happened in the name of a commitment to original meaning.

So to non-Christians for women, for anyone concerned about rampant gun violence, the real world implications of this court’s new commitment to originalism are undeniable. It’s not gonna stop there. The court seems on the brink of declaring that the entire origi- the entire administrative state is inconsistent with the justice’s view of the original meaning of the Constitution, which will, of course put an end to climate legislation and, and, and, and, and just about every other kind of federal regulation.

I think there’s just a tremendous amount that is at stake here. And, and I think the difference between what a commitment to originalism might mean in theory to, to a thou- a thoughtful scholar and what a commitment to originalism actually means in America to the people making the decisions is, is a scary one.

Randy Barnett:

Originalism provides, um, a means by which people can criticize what the Supreme Court does. Even if a Justice com- claims to be an originalist, that doesn’t mean that everything they do is justified, um, as the original, under the original meaning of the Constitution. Um, let’s take the Dobbs case, the abortion case. That was not an originalist opinion by Justice Alito. That was a pre opinion based on the doctrine of substantive due process.

Now, it was the conservatives rendering of substantive due process based on a case that came, uh, that was decided in the 1990s Washington v Luxford. Um, and there were cases before that that relied on history and tradition, but that wasn’t an originalist opinion. Justice Alito for swore looking into the original meaning of the text of the Constitution when he decided that case.

Okay, let’s say we do away with originalism and we tell the, the, uh, six conservative justices, we have five who identify as originalists. Let’s just tell them that they get to decide on the basis of their conception of justice and their conception of a good society, um, and their conception of what these very, very allegedly abstract provisions of the Constitution are.

Um, I’d be surprised, um, if Thomas and others would like the results they would get, um, um, if these justices were free to act the way some of the justices used to act, um, uh, during, for example, the Warren Court era, when in fact they paid no attention to stare decisis or precedent as they were pursuing their conception of justice to the, to the, a agile, uh, to the applause of those who, uh, at that point put the court on a pedestal.

John Donvan:

Yeah. Yes, Thomas. So I’d be curious to, to get your take on, on the, uh, from, from the mid ’50s to the, uh, to the mid ’80s, the, the, the Warren Court and the Burger Court are definitely perceived, I think, to be non-originalists. They made a lot of decisions that changed a lot of things in the country. For you, is there, number one, would you agree that they’re non-originalists before I make that case? Um, and number two, would you say that their non-originalism was a good thing or a bad thing?

Randy Barnett:

John, before Tom answers, let me just jump in and say, I think many, many of the Warren Court decisions are justifiable on the basis of originalism. So I don’t want, um, he doesn’t need to answer that question because I already agree that many are, it’s just the form of the arguments that they made, what arguments they, they, they used as what I was referring to, and disregarding decades and centuries of precedence in order to reach what progresses at that point thought was the right, were the right results.

Now let’s let the conservatives do the same thing and see how much everybody likes it.

John Donvan:

Which is, and your point, that’s a re- that’s a, uh, a sarcastic point. You’re saying they would not like it.

Randy Barnett:

I don’t think so.

John Donvan:

So go ahead, Tom.

Thomas Colby:

Yeah, I mean, I, no, uh, I Randy’s right in a way that I, I would not like that, but there is a way in which I would respect it for at least being honest. And, and what I mean by that is, you know, again, I think the original meaning of the Constitution, the, the, the clauses we care about is abstract enough to produce a wide range of results. And I think Randy just kind of conceded that by saying that a lot of the big war on court decisions, I’m sure he would include Brown versus Board of Education and Loving versus Virginia. I think those cases were decided the rhetoric of those cases as quite non-originalist.

I think Randy’s right, that you probably could use originalism to reach those results. But that just is making the point that you could use originalism to reach a whole wide range of results. Because in fact, the commitments to equality and liberty are, are textually so open-ended. But what, what I, what I wanna go with this is to say that we have a majority originalist Supreme Court now. It’s not as though that has constrained them in any meaningful way. The current court pro- you know, purporting to rely on originalism, they consistently reach results that line up perfectly with the policy preferences of the Republican party.

Originalism is not constraining them at all. I think, in fact, it’s having the opposite effect. It’s empowering their activism because it discourages judicial modesty. Originalists can claim they’re not allowing their own values to affect their decisions. It wasn’t me who made this decision, it was the framers. I was just following the objective history in a neutral, apolitical manner.

I think the originalist justices probably mean that when they say it, but in truth, history rarely provides, provides definitive answers. The original meaning is too abstract. The historical record is too com- incomplete and, and, and contradictory to actually decide the hard cases. They’re not really constrained by history. They’re really deciding the cases to reflect their own preferences, at least subconsciously, but they don’t have to defend their choices either to themselves or to the whole country.

The historical record is a Rorschach test. We can all find what we wanna find in it. And I think that’s true of all of us. It says true of me, a, a as it is of the justices.

Randy Barnett:

I’ve just disputed the facts again. I think this is an accurate description of how the justices have been behaving. Let’s take the Dobbs case, the abortion case. I defy Tom to show me where Justice Alito, who wrote the majority opinion, made an originalist argument in that case. Now, I have to say in passing, he refers to the state of abortion laws in 1868. He does do that. But that’s in the course of making all kinds of claims about history and tradition.

And whether something, whether we’re right, that we’re that exists today was deeply rooted in the nation’s tradition and history in the past. That’s not an originalist claim, that is a doctrinal substantive due process claim. Um, it’s not originalist. Now, I agree he reached the result that he reached, but, uh, I just think that, um, it’s the fact that I, I, I was very careful in my wording. I said, we have five justices who identify as originalist.

I didn’t say we have five justices who use originalism whenever I think they should, or in the correct way that I think they should. They identify as originalists, great. But they oftentimes rely on stare decisis or precedent to make their case far more than they rely on the original public meaning.

And that was true of Justice Scalia during his life as much as it was of any justice alive today.

John Donvan:

Randy, just on on the point you’re making that, that, that the, um, Dobbs decision was not originalist. I’m, I’m, I’m just gonna remark that the Wall Street Journal, when the draft version of that came out, published a piece called The Triumph of or- of originalism. So you’re saying wrong, that was not an originalist argument.

Randy Barnett:

I thought that was, I thought I, I objected to that, uh, that piece in the journal at the time.

Thomas Colby:

And if I could jump in there. I mean, I think, you know, first of all, you know, reliance on stare decisis and precedent certainly doesn’t describe the Dobbs opinion, which kind of rejected stare decisis and precedent.

John Donvan:

I need you to tell people what stare decisis is please

Thomas Colby:

Stare decisis is the doctrine that courts generally should follow decisions previously made e- even if the justices are not sure that the decision was c- was, was correct at the time.

John, your point about the Wall Street Journal editorial, I think that’s key because no, in a sense, Dobbs is not originalist when you define originalism in the sophisticated way that Randy and other scholars tend to define it. But the bottom line is it was originalists in the sense that, you know, the Wall Street Journal saw it that way. The, the senators that wrote about it saw it that way.

And I think the justices saw it that way. All of the originalist justices signed onto that opinion. And, and, and you know, there, there’s no suggestion here that there’s something non-originalist about what they’re doing. Now I think it’s bad originalism, and, and I, I d- I, I don’t think Randy would’ve done it, ’cause Randy- Randy’s a much better originalist than that.

But I do think it was, it, it purports to be originalism and, you know, it sold Justice Thomas, the court’s biggest originalist, it sold Justice Barrett, who just, you heard her say that originalism is the only way to decide cases. And then she decided this one that way. I think this is how they view originalism and, and that’s what I care about, honestly.

And, and, and in no offense to, to Randy, I’m a law professor too, but what we think doesn’t matter what they think does.

John Donvan:

I’m John Donvan. This is Open To Debate. When we return, we’re gonna continue talking on this question. Should the Supreme Court focus on the original meaning of the Constitution? We’ll be right back.

Welcome back to Open To Debate. The question we’re debating should the Supreme Court focus on the original meaning of the Constitution? We wanna bring some new voices into the conversation, some journalists who cover these issues and who have agreed to join the conversation by putting some questions to our two debaters. And so we wanna welcome in Jess Bravin, uh, Supreme Court correspondent for the Wall Street Journal.

Jess, thanks so much for joining us and um, we’d love to hear your question for the debaters.

Jess Bravin:

Let me start with Randy. We’ve talked about the equal protection clause of the 14th Amendment adopted in, in 1868. Well, in, in 1920, uh, the, the Constitution was amended to extend the franchise to women. Does that subsequent amendment change the way that we understand what equal protection means? Does that have any, uh, impact, uh, at all, uh, on, on the way we look at those words?

Randy Barnett:

Really interesting question to me ’cause I think the question is, did the meaning of the words change when the situation changed or were the, was the meaning of the words always the same?

Uh, yes. I mean, the answer is it did change something, but it wasn’t the meaning of equal protection. What that had the effect of doing in, as I argue in my book on the 14th Amendment, is changing, um, not the meaning of the privilege immunities clause, but whether voting was considered to be a privilege of citizenship. That in 1868 there’s generally conceded and I think correctly that the right to vote or the franchise was not considered a privilege of citizenship, uh, and therefore was not protected by the privileges or immunities clause.

But by the time that the Constitution was amended, I think it, we argue in our book that the right to vote did become a privilege of citizen it wa- citizenship. It was considered in the positive law to be a privilege of citizenship of adult. That is people who have reached the age of majority. So the answer to that is yes, the subsequent amendments did change, um, uh, the application of the 14th Amendment, it did not change the meaning of the 14th Amendment, but it changed the application of the 14th Amendment.

Jess Bravin:

Okay. Uh, and, and for, and for Thomas. Um, you know, uh, just I remember Justice Scalia saying when originalism was criticized that, uh, well, you can’t beat something with nothing. Uh, and and this, this idea, uh, recurred to me when I watched the hearings for Justice Jackson, where Republican senator frequently asked her what her judicial philosophy or ideology was, and she said she, she didn’t have one.

Uh, originalism largely identified with conservatism, conservatives. Uh, it has a, a general understanding of what it is we’re talking about, but is there anything in opposition among progressives or liberals? Do they have any judicial philosophy?

Thomas Colby:

There is progressive originalism, which I think sort of builds on some of the things I was saying, that in fact the, the original meaning of the clauses we care about is abstract enough that it can produce results, uh, that, that progressives are actually quite happy with. But I do think that, you know, Justice Scalia wa- it was a genius move to sort of divide the world into originalism and non-originalism, because then he could say, “Look, non-originalism, that that’s completely incoherent.” At least we’ve got a con- coherent theory on our side.

And, and it’s true that if one is not committed to originalism, that doesn’t commit anyone to any particular theory, it just means you’re not committed to that one. But I will say that I think the, the a, a large number of non-originalist thinkers are committed to what you might call common law Constitutionalism. That, that the Constitutional law is like any other kind of law, and it calls for judges to decide cases, the way judges decide cases, which is to say that you follow the precedents and, and you, you know, the, the common law is inherently conservative in the sense that it’s backward looking.

You’re always looking to the precedence for the answers, but it’s also forward moving because you, from the precedence, you discern the underlying principles in the law. And then you see whether those principles do or do not apply to new situations, a- as, as as the world continues to change.

John Donvan:

Jess, thank you very much for joining us. We’ve really appreciated, uh, your, your participation. And I wanna go now to Joe Patrice. And Joe is senior editor for Above the Law. Joe, thanks very much for joining us and we’re dying to hear your question.

Joe Patrice:

Yeah, so one argument that was raised in the openings that I haven’t heard much about since, but I would like to expand more on is this consent of the governed argument. Uh, it was originally raised as, you know, this was democratically passed as were all the amendments. Uh, the counter was that, you know, it wasn’t really democratic when the kinds of people who were allowed to vote weren’t, uh, the real open populace.

That kind of got waved away. I, as you know, if we go down that road, then statutes would also be, you know, could also be considered dead hand. But I think that my one thing is, I feel like that jumps over the fact that you could get rid of a statute with a simple majority, but the amendment process is so onerous that it, does it not stack the deck a little bit too much in favor of the, those smaller groups of privileged people who passed that.

On one, and that’s one issue that I’d like to get a little bit more clarity on why that doesn’t limit.

John Donvan:

Thomas, why don’t you take that first? ‘Cause uh, the question was a little, a li- a little bit plain, I think to your argument, but, uh, so I wanna give you that crack and then bring it to Randy.

Thomas Colby:

Uh, I think it does stack the deck, uh, in, in favor of certain segments of society, especially, and, and in favor of certain mindsets that, that are, are no longer are that, that no longer prevail for the most part in this country. Uh, I, I think that, you know, I, I suspect Randy will say no because the, we can, you know, if judges don’t invent new rights in a non-originalist way, then this just leaves it to the people to govern themselves today.

But I think that, that, that sort of aligns over the fact that, for instance, when the Supreme Court takes this really aggressive meaning of the Second Amendment, it completely precludes the people today from, you know, acting, enacting gun control laws that are wildly popular.

So I, I, I don’t think it’s a, I think that in fact, because the Constitution is virtually impossible to amend in a, in a polarized moment like this, we’re, we’re sort of wedded indefinitely to the, the morays, the belief systems, the values of, uh, of our ancestors who in many ways were, were tremendous people and tremendous champions of liberty and equality and who in many ways w do not live up to the standards that, that we ought to be able to govern ourselves pursuant to.

Joe Patrice:

Uh, this goes towards Randy then what, uh, you know, your recent book was about the 14th Amendment, uh, and you also talked about all the amendments being democratic, but that, you know, let’s be honest, the 14th Amendment isn’t particularly democratically passed. I mean, it was kind of forced on the South, uh, for good reasons, arguably, but how do you view that as being democratically passed?

Randy Barnett:

Joe, that’s where, that’s one where I’m gonna need you to do a little ed- education for the general audience.

Joe Patrice:

Uh, yes, the 14th Amendment is passed, uh, in the aftermath of the Civil War. Uh, it was passed by kind of, uh, the Republicans who were in the North, who still dominated the government, the Southern, uh, the Southern states were forced to ratify it as part of ending their military occupation. So they kind of didn’t have a lot of choice.

Randy Barnett:

Well, I’m gonna surprise Joe, I think a little bit, maybe Tom as well. Um, I did list the five normative arguments that are most commonly made on behalf of originalism, and I led off with the consent of the governed, uh, based on the democratic legitimacy of the ado- of the adoption of the Constitution. I, myself, uh, am not persuaded by that argument. It is not an argument that I assert on my own behalf.

For many of the reasons that Joe has mentioned. Um, I think it’s fair to say, um, that we ackno- we can recognize that the Constitution became law and when it became law, we can recognize when the 14th Amendment became law. We can actually recognize how it became law as well on the rule of law, the judicial role and separation of powers, the consent of the governors, the fact that every person who takes power under the Constitution takes an oath to it. And finally, the relationship of the Constitution to justice.

John Donvan:

Thank you, Randy, and thank you Joe for your questions. Um, I’ve been looking for an example of real world consequences of the practice of originalism or the absence of originalism in a Supreme Court decision. And the one I’ve settled on, I hope it’s illustrative, is Roper versus Simmons 2005. And this was a case where the Supreme Court overturned a death sentence that had been imposed on a man who committed a crime when he was under the age of 18.

The, this ended capital punishment for crimes committed by minors. And the argument that carried the day was the understanding that standards of decency had evolved, uh, across the nation, where the idea of executing a minor was now seen as the wrong thing to do.

In the year 2005, Justices Scalia and Thomas disagreed with this arguing basically that it failed to meet their originalist expectations. And their reason given was that at the time that the Eighth Amendment was ratified, execution of minors was not seen to be cruel and unusual.

I like this case because I think it really shows these two things, intention, the current day attitudes and a non-originalist argument reaching this conclusion that today, I think probably, I don’t actually know, but I I’m guessing many, many listeners out there would agree that it’s an appropriate decision, but not originalist. And I wanna ask you, Randy, take that on and analyze it for us briefly.

Randy Barnett:

Uh, well first of all, um, this, that, that approach to originalism that was manifested by Justices Thomas and, and Scalia is a little like what Tom was describing, which is, uh, the asking whether the people, um, who wrote that provision would have thought it was applicable to this, that, or the other thing today. Uh, that is not, I mean, that it’s, it’s actually not a terrible heuristic to start with, but it’s not something that’s definitive or dispositive of original meaning in any way.

What you need to do is look at the original meaning of the word cruel and unusual. John Jennifer at the University of Florida has done that in Pathbreaking work that, uh, I, I don’t know that there’s, it has been critiqued in any way. Uh, cruel punishment- cruel punishments are those that are disproportionate, uh, or deemed to be disproportionate to the harm. And unusual punishments are ones that are novel punishments, that are ones that have not existed through history and are kind of made up and new.

Um, and so that would be the standard that you would then apply not evolving standards of decency, which comes from nowhere other than the Supreme Court itself. So that is how I would approach the question as an originalist, I would start with the original meaning of those terms, but I wouldn’t end there. I would start there, but I would by no means end there.

John Donvan:

And Thomas, your take on that case.

Thomas Colby:

Yeah, I mean, I think that a, as Randy noted that, that sort of illustrates the difference that I was trying to say between the way originalism is practiced by the leading originalist judges and the way originalism is talked about by the leading originalist scholars. And, and I don’t, you know, you, you didn’t see Justice Scalia, Justice Thomas engaging in that sort of, that sort of sophisticated analysis. You know, it, it, at the, at the time of the framing of the Constitution, it wasn’t unusual to pillory people and draw and quarter them and whatnot.

But today we would say, look, that is cruel and, and, and, and it is unusual today. Whether it was usual or not back then shouldn’t matter. And, and, and, you know, maybe that’s originalist interpretation. If one wants to take a very broad understanding of originalism, I think it is more quintessentially non-originalist interpretation. And I think if we’re looking for justice, that’s where we find it.

Randy Barnett:

I wanna agree with Tom about that. I mean, i- i- what I was just, the method I was describing, uh, does not say whether something was unusual then it’s whether, it’s unusual today, if a particular kind of punishment has fallen out of use, it’s called desuetude. It’s no longer used and it hasn’t been used for a long time. It’s unu- it would be unusual to revive that con- that, that punishment and do it today. That’s what Sifford says.

So the, it’s just, this is not such a mysterious thing. I mean, we just can’t judge these things all based on what results we want to have. We need some, we need some reference or standard outside our own heads. Um, and the meaning of language, um, is one of those standards that we use. And we use it all the time.

John Donvan:

It’s time to go to closing remarks now. These will be, uh, brief, uh, less than two minutes. Uh, each debater gets to sum up his argument and explain why he’s arguing yes or no. Thomas, since Randy went first in our opening statements, you have the floor. One more time, your answer to the question, should the Supreme Court focus on the original meaning of the Constitution? You’re saying no.

Thomas Colby:

Yeah. And, and here, here’s my, my anecdote to do that. Last year, the Supreme Court, in an originalist opinion by Justice Clarence Thomas, held that the Second Amendment precludes virtually any gun control limitations that were not widely employed historically. If our nation doesn’t have a long and demonstrable historical tradition of limiting access to firearms in a particular way, then the government is not permitted to enact such a limitation today.

But of course, the vast majority of modern gun control laws don’t have clear historical analogs. We didn’t face the same concerns back then. Guns were much less sophisticated and much less deadly, and our society was very different. Of course, we didn’t enact laws way back then to address today’s unique concerns. A few months ago, relying on that originalist decision of the Supreme Court, the Fifth Circuit Court of Appeals struck down the federal law prohibiting persons under a restraining order for domestic violence or domestic abuse from owning a gun.

At the time of the framing, domestic abuse was not a crime. A husband had a legal right to assault or even to rape his wife. Thus, historically, there obviously were no laws preventing domestic abusers from owning a gun. Therefore, under the Supreme Court’s originalist rule, such a law is unconstitutional today. And thus, the Fifth Circuit struck the federal law down.

But of course, historically, women were considered to have virtually no rights at all. And women had no ability to vote, no ability to hold public office, no ability to participate in the political process by which the historical laws determining the scope of permissible gun regulation were made in that bygone era. The laws way back then were made by the men doing the beating, not by the women being abused.

And yet originalism tells us that the fact that the exclusionary unjust political process of a long, long gone age did not protect domestic abuse victims means that all federal, state and local governments everywhere today are powerless to protect those women. Every single day in America in 2023, multiple women are shot and killed by domestic partners, and the government can do nothing to keep them safe. Because 200 years ago, the men in power didn’t think that domestic abuse was a problem.

That’s no way to decide constitutional law cases in the 21st century. It’s just not.

John Donvan:

Thank you, Thomas. And Randy, you get the final word here. One more time, you’re answering yes to the question. Should the Supreme Court focus on the original meaning of the Constitution?

Randy Barnett:

When I went to law school, I love the Constitution. I thought it was great, like most Americans do. I, I was very grateful for the fact we had a Constitution, and then I took constitutional law. And when I took constitutional law, my professor was Larry Tribe, who was a fine professor. This was not his fault. But every time we got to one of the good parts of the Constitution, like the Ninth Amendment that says, the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. I would look at it and I would go, “Wow, that’s great. I love that.”

Then I would turn the page of the case book and I would see that the Supreme Court had basically written that out of the Constitution. And then I got to the privileges or immunities clause, and then I turned the page and I saw they’d written that out of the Constitution. I got to the Second Amendment, the right to keep and bear arms. They’d written that out of the Constitution until, I mean, I went to law school a long time ago.

Um, and then I got to all the good parts of the Constitution. There’s a Commerce clause there. Well, no, that doesn’t really mean much of anything necessary, and proper clause can mean anything. And by the time I was done with Constitutional law as a student, I was done with the Constitution. My view was that if the Supreme Court isn’t going to, doesn’t care about the Constitution, then why should I?

But over the years, I got interested in, first of all, in the Ninth Amendment. I became a Ninth Amendment expert. And then I got interested in the Second Amendment. I became a Second Amendment in expert. And then because I was involved in the medical marijuana challenge that went to the Supreme Court, I became an expert on the Commerce Clause. Um, and then I became involved, uh, in the originalist movement, which originally I was not an originalist.

When I was, uh, before I was an originalist in the 1990s, I, I was a Dworkin and moral readings non-originalist. But then I realized, and by reading of all people, Lysander Spooner, a, a radical, uh, anti-slavery abolitionist, making his constitutional arguments that the original public meaning of the Constitution is something that’s ascertainable and should be followed.

And there was a chance, there was just a chance that if we could push this agenda farther, we could restore the Lost Constitution, which is the sub- which is the title of my first book on the Constitution. What do I mean by the Lost Constitution? Restore the Second Amendment, restore the Ninth Amendment, restore the privileges or immunities clause or the 14th Amendment, restore the Commerce Clause, restore lots of parts of the Constitution that have been read out of the Constitution by a Supreme Court that didn’t consider itself bound to it.

Now, none, most, many of those provisions have not been restored yet, even by conservative justices who claim to be originalist. But that’s something that they should do. And an or- originalism gives not only an argument for what the Constitution means, but also an argument to critique what justices on the left and on the right do under the rubric of enforcing the Constitution.

John Donvan:

Thank you, Randy. And that is a wrap on this debate. I wanna express my gratitude to both of you for being willing to meet one another over this issue and for bringing your thoughtful disagreement to the table. In short, for being open to debate. We really appreciated both of you the way that you, you brought passion and you also shed light. It’s what we aim for here. So, um, Randy and Thomas, thank you so much for being part of this program.

Thomas Colby:

Thank you.

Randy Barnett:

It was a pleasure.

John Donvan:

And I wanna thank our reporters, Jess and Joe also for your contributions and your questions. And finally, I wanna thank all of you who are tuning into this episode of Open To Debate. You know, as a nonprofit, our work to combat extreme polarization through civil and respectful debate is generously funded by listeners like you and by the Rosenkranz Foundation and by supporters of Open To Debate.

Open To Debate is also made possible by a generous grant from the Laura and Gary Lauder Venture Philanthropy Fund. Robert Rosenkranz is our chairman. Clay O’Connor is CEO, Liam Matha was our Chief Content Officer. Julia Melfi is our senior producer, Marlette Sandoval, our editorial producer, Gabriela Mayor, is our editorial and research manager. Gabrielle Gianelli is our social media and digital platforms coordinator. Andrew Lipson is head of production, Max Fulton, our production coordinator, Damon Whitmore, our engineer, Raven Baker is events and operations manager.

Rachel Kemp is our chief of staff. Our theme music is by Alex Clement. And I’m your host, John Donvan. We’ll see you next time.