A Republic, If You Can Keep It

by Neil Gorsuch

  Backing away slightly at this point, living constitutionalists often pursue their indeterminacy argument this way. They point to cases where originalist justices on the Supreme Court have disagreed about the Constitution’s original meaning. They say, “Aha! See, the promise of being able to figure out the original meaning of the Constitution is such a sham even they can’t agree.” But what does the occasional disagreement between originalists really prove? We all know that the cases that land in the Supreme Court are the hardest ones in our legal system. So why should it surprise anyone that faithful originalists on the Court sometimes disagree on the original meaning of some of its provisions? And why should that be an indictment against the methodology?

  After all, if there’s one piece of terrain that living constitutionalists do not want to pitch their battle upon, it’s determinacy. Originalism makes many of the living constitutionalists’ hard cases quite easy. Is the death penalty constitutional? Yes, the Constitution expressly mentions it multiple times. Does the Sixth Amendment require confrontation or are there a bunch of balancing tests and unenumerated exceptions we must devise? We know the answer because the text tells us. And while originalists may sometimes disagree on outcomes, they are at least constrained by the same value-neutral methodology and the same closed record of historical evidence. Come to us with arguments from text, structure, and history and we are bound to listen with care and do our best to reason through them. Allow me to reign over the country as a living constitutionalist and you have no idea how I will exercise that fickle power.

  Fine, the living constitutionalist usually says. Maybe we could make originalism work reasonably well, but why should we be ruled by the dead hand of the past? But beware: This argument proves too much. This isn’t an attack against originalism so much as it is an attack on written law. After all, as soon as the people ratify a constitutional provision or the legislature passes a new statute, it becomes a law written by a past rather than a present majority. And at exactly what point does continued adherence to that law become the dreaded rule of the dead hand? When a majority of those who voted to ratify it have died? When everyone who voted to ratify it has died? Lives in being plus twenty-one years? If laws enacted by the dead hand are presumptively problematic, then what about the Civil Rights Act of 1964 and the Voting Rights Act of 1965? Or the Equal Protection, the Due Process, and the Cruel and Unusual Punishments Clauses?

  If living constitutionalists can’t really believe the dead hand critique, what are they trying to get at here? I suspect their real complaint isn’t with old laws generally so much as it is with the particular terms of this old law. The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.

  Others argue that originalism fails to afford sufficient respect to precedent. They suggest, for example, that originalism is incompatible with important judicial decisions like Brown v. Board of Education. Note here, again, that on this view (some) dead hands are just fine. But even more important, note that this critique contains at least two errors. First, it assumes that the precedents in question cannot be squared with the original understanding. But that’s not always so. Take a look, for example, at Michael McConnell’s, Steven Calabresi’s, and Michael Perl’s originalist defenses of Brown itself and count me convinced. Second, this argument overlooks the fact that adopting a theory of interpretation for unsettled questions and adopting a theory of precedent for settled questions are two different things. A living constitutionalist, no less than an originalist, must decide when to abide and when to discard judicial precedents with which he may disagree. And, of course, getting your theory of precedent right is important (and I deal with that question elsewhere, including in a very long book with several judicial colleagues). But it also runs orthogonal to our current discussion.

  A final, frequent, and related objection to originalism goes something like this. Originalism should be rejected because it leads to bad results. I can’t help but notice, though, that many of the supposedly “bad” results critics cite often just reflect their own erroneous and sometimes even farcical understandings of originalism. Take one example I hear often these days: Some critics assert that originalism should be rejected because it means a woman cannot be president. After all, they note, the Constitution refers to the chief executive as “he.” But this is nonsense. When the Constitution was ratified, “he” served as a standard pronoun of indefinite gender—it covered women too. (As it often does today.) Plainly, a woman can be elected president under the written terms of the Constitution.

  Beyond that, let me pose this question. Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The “judicial Power” of Article III of the Constitution isn’t a promise of all good things. Letting dangerous and obviously guilty criminals who have gravely injured their victims go free just because an officer forgot to secure a warrant or because the prosecutor neglected to bring a witness to trial for confrontation seems like a bad idea to plenty of people. But do you really want judges to revise the Constitution to avoid those “bad” results? Or do you believe that judges should enforce the law’s protections equally for everyone, regardless of how inefficient or unpopular or old the law might be? Regardless of who benefits today—the criminal or the police; the business or the employee; immigrants or ICE?

  Of course, some suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protesters to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment). In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it. I could go on and on. So could any originalist judge.

  Besides, if we’re going to measure an interpretive theory by its results, consider this. Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day. A majority in Korematsu, unmoored from o
riginalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitution’s express guarantees of due process and equal protection of the laws. A majority in Dred Scott, also disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories. In both cases, judges sought to pursue policy ends they thought vital. Theirs was a living and evolving Constitution. And often enough it may be tempting for a judge to do what he thinks best for society in the moment, to bend the law a little to an end he desires, to trade just a bit of judicial integrity for political expediency. After all, passing majorities will applaud judicial efforts to follow their wishes. But as Korematsu and Dred Scott illustrate, the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.

  Even when it comes to more prosaic cases, leaving things to the moral imagination of judges invites trouble. Just consider the “reasonable expectation of privacy” test the Court invented in the 1960s to redefine what qualifies as a search for Fourth Amendment purposes. Oh, it sounded nice enough. But under that judge-made doctrine, the Court has held—and I’m not making this up—that a police helicopter hovering 400 feet above your home doesn’t offend a “reasonable expectation of privacy.” The Court has even held that the government can snoop through materials you’ve entrusted to the care of third parties because, in its judgment, that, too, doesn’t invade a “reasonable expectation of privacy.” But who really believes that? The car you let the valet park; the medical records your doctor promised to keep confidential; the emails you sent to your closest friend. You don’t have a reasonable expectation of privacy against the government in any of those things? Really?

  * * *

  —

  WITH SOME OF THE sillier objections against originalism cleared out of the way, let’s turn to the real business. Any serious discussion of constitutional interpretation must begin with the Constitution itself. After all, a judge’s oath and most important job is to preserve that document and its guarantees. And while the Constitution doesn’t speak directly to the proper mode of its interpretation, a careful inspection of its terms and structure shows that originalism is anticipated and fairly commanded by its terms.

  Start with what the Constitution says about itself: “This Constitution…[is] the supreme Law of the Land.” Underscoring its status as “supreme Law,” the Constitution requires “all…judicial Officers…[to] be bound by Oath or Affirmation, to support” it. In England, of course, the constitution was largely a set of unwritten customs. Our founders deliberately rejected that model when they decided to adopt a written Constitution. And the Constitution’s self-conscious language emphasizing its written-ness, its status as a law, and the judge’s duty to abide its terms tell us some important things about the judge’s job. It tells us that the Constitution’s express limitations on the scope of governmental action are not merely aspirational or customary or advisory. Or at least that they are not supposed to be. It tells us that the Constitution is itself a law, the supreme law. It tells us, too, that only the terms of this written document and nothing else, not any unreferenced norm or custom, constitutes that supreme law. And it tells us that judges are bound to enforce this law before any other. As Chief Justice John Marshall explained, “The powers of the [government] are defined, and limited; and [so] that those limits may not be mistaken, or forgotten, the constitution is written.” In Marshall’s view, it would be “immoral” for a judge to take an oath to support the Constitution only then to serve later as “the knowing instrument[], for violating what [he has sworn] to support!”

  For a judge bound to respect and not violate the terms of a written law he has sworn to support, the natural starting point for resolving any dispute over its meaning must be the ordinary meaning of that term at the time of its enactment. After all, that’s how we interpret most every text. When Hamlet threatens to “make a ghost of him that lets me,” the reference may seem unclear to a modern reader. But when you look at a contemporaneous dictionary you quickly discover that “let” meant “hinder” (as the term is still used in tennis today, when the ball is hindered by the net). So, most everyone today would agree that Hamlet was not threatening to kill someone who wanted to be killed; it’s clear that Hamlet was threatening to kill anyone who got in his way. Confusion solved by the original public meaning.

  To be sure, the law sometimes assigns specialized meanings to words and terms and we must ask what the ordinary reader familiar with the law’s specialized meanings would have understood of the word or term’s usage at the time of the law’s adoption. After all, to know what “let” meant in Shakespeare’s time we must ask what a person familiar with the word and its usages would make of it, and exactly the same holds here. Some of the Constitution’s terms had long-established and very particular meanings in the common law familiar to lawyers and judges.

  But the notion that the same rules of interpretation that apply to other written laws should apply to the written law of our Constitution is an ancient one and exactly what the framers expected. As Hamilton put it, the Constitution should be interpreted “according to the usual and established rules of construction.” It’s an idea, too, that the Supreme Court and many other courts have reaffirmed repeatedly over the course of our history. In 1790, for example, the General Court of Maryland explained that “[i]n expounding the Federal Constitution, the same rules will be observed which are attended to in the exposition of a statute.” After all, a group full of lawyers wrote a legal document. Should it be any surprise that they expected the document to be interpreted in accord with long-accepted principles of legal interpretation?

  In fact, while the founders and early justices disagreed on much else, many agreed on this. Chief Justice Marshall explained that the Constitution’s “words are to be understood in that sense in which they are generally used.” James Madison “entirely concur[red] in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.” Justice Joseph Story said that “the Constitution must be expounded…as it stands” and should not “be subject to…fluctuations” but should mean the same thing “forever.” Thomas Jefferson argued that the Constitution should not be interpreted by “what meaning may be squeezed out of the text, or invented against it” but instead by “the probable one in which it was passed.” Even George Washington, no lawyer himself, explained that “the Constitution, which at any time exists, ’till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all….[L]et there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” Living constitutionalists reject this by asking us, admittedly and frankly, to allow judges to bend the Constitution in new and evolving ways. After all, living constitutionalism only has purchase and purpose when it departs from the original understanding.

  Notice, too, this inconsistency in the living constitutionalist’s argument. Sometimes even they will admit the original public meaning should control. For example, when the Constitution speaks of allowing the government to raise the militia in cases of “domestic Violence,” no one thinks the government can call forth the troops in response to an instance of spousal abuse; everyone accepts that the phrase “domestic Violence” should be understood according to its original meaning as referring to an insurrection. Take another example. The Constitution says that the president must be thirty-five. That provision was written in a time when the average life expectancy was thirty-six. But you’d be committed if you argued that we should adjust for inflation, and only those (say) seventy-five or older could be president. So the truth is that everyone—even the living constitutionalis
ts—agrees that we must interpret the Constitution according to its original meaning at least sometimes. But what persuasive explanation is there for the living constitutionalists’ suggestion that we should only sometimes adhere to the original public meaning of the Constitution’s written text? For my part, I can think of none.

  * * *

  —

  LET’S TURN NEXT TO the Constitution’s ratification and amendment procedures. The Constitution leaves to democratic processes, Hamilton explained, the job of “prescrib[ing] the rules by which the duties and rights of every citizen are to be regulated.” So before the Constitution could take effect, the founders called on the states to convene special conventions of the people’s representatives. And they insisted on a supermajority of those conventions to ratify the original Constitution. Later, to amend the Constitution’s terms, the founders required a supermajority of states agree. None of this was an accident. All of it was part of a self-conscious design, as Madison said, aimed at “secur[ing] the public good and private rights against the danger of such a [majority] faction, and at the same time…preserv[ing] the spirit and the form of popular government.”

  Originalism honors this design by respecting both whom the Constitution entrusts with its adoption and amendment and how those things are supposed to be accomplished. Originalism seeks to enforce the Constitution and its amendments consistent with the understandings of the people who were alone legally authorized to adopt them. And it seeks to prevent any alterations to the meaning of those terms through other legally unauthorized means. When we interpret a legal text, we usually follow the ancient principle of expressio unius—recognizing that when the law prescribes a particular way of accomplishing something, it means to exclude other possible and unmentioned alternatives. So when the Constitution tells us how to ratify and amend its terms through carefully calibrated democratic processes calculated to respect minority interests, an originalist knows that it necessarily means to exclude other potential methods of altering its content—whether by means of a bare majority of states, by Congress alone, or (worse yet) by a handful of willful judges.