Modern day “originalism” is a method (in my view, a narrow tool and not an expansive religion) of understanding the Constitution. No longer pursuing the fool’s errand of attempting to ascertain “original intent,” the modern-day originalist judge looks to the ordinary public meaning of the words of the Constitution at or about the time of the Founding to make decisions about the lives of litigants. This notion has within it an effort to understand the structure of our Constitution with reference to the writings of the Founders and the ordinary public meaning of the words they used. OK, the table has now been set.
While I am not a legal historian, I know something about legal history. I have long served as Chairman of the Board of the Historical Society of the United States Courts in the Eighth Circuit. In that capacity I have come to know and deeply appreciate distinguished (and always humble) legal historians such as Jeffrey Morris, John Wunder and Mark Scherer. These fellows have law degrees and PhD degrees in history. One of their history books has even been dedicated to me. Forgive the self-promotion, but it has a point beyond merely massaging my massive ego.
Now I turn to the essay that caught my eye and prompted this response. See How Originalism Changes Legal Analysis by law professor John O. McGinnis, in Law and Liberty. Frankly, it shocked me because it is nothing short of revolutionary when comes to federal district judges.
Here’s the backstory:
In Collins v. Mnuchin, the Fifth Circuit, sitting en banc, advanced the concept of the unitary executive by holding that the structure of the Federal Housing Finance Agency (FHFA) was unconstitutional, because its director did not serve at the pleasure of the President. The opinion is very important for showing how lower court judges should address precedent in tension with their view of the original meaning of the Constitution—in this case, that Article II vests the entire executive power in the President and thus gives him control over agencies exercising executive functions. Led by judges recently appointed by President Trump, the Fifth Circuit is asserting that the original meaning should cabin Supreme Court precedent averse to original meaning. That is, such precedent should control the outcome of a case when it is directly on point, but should be narrowly read.
Id. (Emphasis added.)
McGinnis makes his point clearly and without the slightest qualification. He asserts,
Conventional legal analysis in high stakes constitutional cases looks nothing like it did a generation ago. At that time it could be fairly said that Supreme Court precedents were all important. Thus, briefs that emphasized original meaning were a waste of time. But today no lawyer can afford to ignore original meaning, even in areas where the Supreme Court has rendered many non-originalist decisions and even in the lower courts. The essential nature of law is changing as originalism meaning takes precedence over precedent.
Id. (Emphasis added.)
At least in this post, I don’t care to address how appellate judges ought to rule. Indeed, I don’t care one whit about how the Fifth Circuit reached the decision that McGinnis describes as his launching point. I don’t care about the outcome of that case either. But I do care, and deeply so, about the thesis that McGinnis presents insofar as it is applicable to federal district judges.
When it comes to federal district judges, I have two problems with the argument that McGinnis makes. One is practical. The other is theoretical.
As for the practical, McGinnis does not appreciate that the great majority of federal district judges have little or no training as legal historians. They are simply not trained to engage in the exegesis that McGinnis’ assumes that federal district judges would be required to engage in should it be true that “originalism . . . takes precedence over precedent.”
Now you, the sophisticated reader, may respond in the following way. You may say that McGinnis was only speaking for appellate judges. If so, then his argument is far too narrow. After all, somebody must make the first decision that appellate judges review. Even if he wasn’t thinking of federal district judges, he should have. We are not potted plants. And, as a group, I argue that we are simply not up to the task. We run assembly lines that, because of the press of business, require us to spit out decisions as fast as we can. We resolve disputes using conventional methods. Next case!
I would argue that same practical point for most of the lawyers who appear before us. Maybe someday trial lawyers will be trained as “originalists,” although I doubt it. Except for a few, if you asked most lawyers to direct their pleadings, arguments and briefs to originalism, they would fail. At the level of the district courts, there are simply not enough trial practitioners with training as serious originalists to form a critical mass.
And I pray that the Gods will save me and my colleagues from appellate lawyers who parachute in to try cases. They are like ducks out of water, and most think the Federal Rules of Evidence are far too mundane to master. (It is, however, great fun to pimp them around.)
There is yet another practical objection. Very few cases come before the federal district courts that require, or are suited to, the application of originalism. So, federal district judges simply lack that day in, and day out experience to grapple with the ordinary public meaning of the text of the Constitution. If practice makes perfect, we don’t have enough cases calling for an understanding of originalism to perfect that trade, assuming the doubtful proposition that we have the nascent ability in the first place.
Let me now turn to my primary objection. “[O]riginalism . . . takes precedence over precedent.” Really? Who says? Certainly not the Supreme Court.
Take the case of Hutto v. Davis, 454 US 370 (1982) (summarily reversing in per curiam opinion the Fourth Circuit, sitting en banc, who affirmed the grant of a writ of habeas corpus by the district court on Eighth Amendment grounds for a prisoner who had been given 40 years in prison for 9 ounces of marijuana). The Supreme Court chastised the Fourth Circuit for failing to follow precedent.
The Court said:
[T]he Court of Appeals could be viewed as having ignored, consciously or unconsciously, the hierarchy of the federal court system created by the Constitution and Congress. Admittedly, the Members of this Court decide cases “by virtue of their commissions, not their competence.” And arguments may be made one way or the other whether the present case is distinguishable, except as to its facts, from [the prior decision] Rummel. But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.
Id. at 374-375. (Emphasis added).
As I have argued before[i], this means we district judges follow the precedents of the Supreme Court (and the Courts of Appeal) without guile. We don’t look for holes in reasoning. We don’t try to wiggle out from precedents that we detest. We don’t look for the “original public meaning” that was ignored or overlooked by the Supreme Court. We simply apply the precedents in good faith. No matter the value one places on originalism, to the district judge, precedent does and should take precedence over originalism.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] This link also has a certain irony to it. For the rest of the story, see here and here.