Hon. Dean A. Reuter: Welcome in, everyone. If people could find a seat, please. I know we have lots of people in the hallway, but we’re going to go ahead and get started, if we could.
Welcome and thank you all for being here. Thank you so much. I am Dean Reuter, Senior Vice President and General Counsel of The Federalist Society. It is my pleasure to welcome you to our proceedings at this year’s convention. I want to also welcome everyone watching on the live stream or on video, as the case be. I also want to thank, in addition to you here in the room, thank our donors for their support, without whom, I suppose, we’d be hosting this meeting in a field somewhere. So thanks to those donors, large and small.
And thanks in advance — I never get to do this with a lot of people in the room — but thanks in advance to our staff, the staff of The Federalist Society, and it’s really not thanks in advance. They’ve been working on this for months, so thank you to them for their efforts. [Applause] A couple of logistical items. If you’re seeking CLE credit, you need to use the QR code to sign in at this point in time, and then, sign out with the same QR code. Sign in every morning, and sign out every evening. Otherwise, you’ll create some problems for yourselves.
Also, we have, again, this year, the folks from the Remnant Trust and their collection of rare documents. I don’t know if folks were able to visit the exhibit last year, but it really, really is splendid, and I recommend you take a moment. There are some breaks in the schedule. It’s on the second floor in the South Carolina Room. And if you were there last year, you were probably awed.
There is a collection of new and additional documents this year. I shouldn’t say “new” documents. They’re new “old” documents. And really, where else can you go and actually hold a 1350 copy of Magna Carta. Upstairs on the second floor is where you can do that. And you have -- you get to hold, interact with these documents, take pictures with them, tweet about it. So that’s the business items.
As to the introduction, a wise man once told me that a good introduction is both brief and clever, so I will at least try to be brief. Our theme this year is “Originalism on the Ground,” and that is the focus of our first Showcase Panel. This, I think, is the largest roundtable panel discussion we’ve ever had. There are more -- you could land a plane on this table probably. The fact is there are more jurists now that are more receptive than ever to originalism and textualism.
Now, that might give some of us in the audience in the room a sense of satisfaction or even a sense of accomplishment, a sense of even finality, well done. We’re done. But to paraphrase Churchill, this does not mark the end of any originalism project, not even the beginning of the end of the original project. Rather, we’ve come, perhaps, to the end of the beginning of the original -- originalism project. This project really is just taking off. So this is not the time to pause or suspend discussion and explication of originalism, our research and scholarship on originalism. We need to carry forth. This is the time to move forward and to carry on, and so, we shall.
And that, this talk about originalism, does remind me of a brief story. And it relates to the meaning of words, indeed the very meaning of originalism. Some very good friends of mine had two sons, Charlie and Ryan, both toddlers at the time of this story. Now, Charlie was the younger of the two, and he had a medical condition that required daily injections. So it was a daily struggle for the parents who had to administer these shots, sometimes in the arms, sometimes in the thigh. And anyone here with children or anybody here who was a child, you know that there’s nothing enjoyed quite so much by a toddler as an injection by needle.
Well, one day, Charlie was particularly resistant to his injection. And the regular compromises and bribes weren’t working, so his mother got creative and offered Charlie a new compromise. She said, “Charlie, you can have your shot anywhere you want it.” And Charlie thought just briefly and said, “I want my shot in Ryan.” [Laughter] So his mother had said he could have his shot anywhere he wanted. She meant, of course, his arm or his thigh. That’s the context.
But she had said, “Anywhere.” And if you look up the word, “anywhere,” in the dictionary, you’ll find out that Charlie was probably within his rights to answer as he did. But of course, originalism is something more than just original public meaning of a single word or even a single phrase. It’s more nuanced and more complicated than that. And those nuances and complications will be central to our Showcase Panel discussions at this convention, beginning with this first Showcase Panel.
For this roundtable, we’ve assembled experts from different parts of the law and public policy world to give various perspectives on utility and state of originalism. We’ve included practicing lawyers, judges, academics, public interest folks. Because I’ve asked our moderators throughout the convention to be brief in their introduction of panelists, I will also be brief in introducing our moderator, almost abrupt, in fact. Your program lists Judge Kevin Newsom as our moderator, but he’s encountered an emergency. He’s just fine, but he can’t be with us today. So Judge Joan Larsen is subbing in as a participating moderator for Judge Newsom, and I owe her a special thanks for that.
Judge Larsen, known to many of you, I expect, sits on the U.S. Court of Appeals on the Sixth Circuit. And before taking the bench, she was a long-time member of the University of Michigan Law School faculty. So for our discussions today, she’ll bring at least two important perspectives. I have to let you know. I can’t let this go without mentioning that she graduated first in her class at Northwestern University Law School, so she and I have in common the fact that we both spent some time at Northwestern Law School. [Laughter] I don’t think they had class ranks when I was there. I wasn’t informed about that. [Laughter] But with that, I will call the panel and Judge Larsen forward, please.
Hon. Joan Larsen: Welcome, everybody, to the first panel of the 2023 National Lawyers Convention. I am really excited to be here and to help moderate this discussion with a fantastic lineup of speakers. This year’s convention is focused on originalism. And when I look at the topics that will be debated over the next few days, I know it’s going to be a terrific conversation. For example, there are panels focusing on how originalism touches on particular topics, like federalism, religious liberty, and criminal law.
But today, we’re going to kick off our discussion with a broader lens. We’re talking about originalism on the ground, meaning how do we do originalism? And I think this topic has both normative and descriptive dimensions. So how is originalism actually being done in the real world, and also, how should it be done? And it’s also both theoretical and practical. How would we do originalism in an ideal world, and how can we do it in the world we actually inhabit with limited resources and constraints on our time?
And finally, we should ask how can we, as attorneys, academics, and judges, do a better job at facilitating the use of this important tool? So to bring you this topic, I have the pleasure of introducing just an all-star lineup of judges, lawyers, and academics, representing both the federal and state perspectives on this topic. Their full bios are in your program. So I’ll be brief, and I’m going to introduce our panelists in alphabetical order; although, that’s not the order in which they will appear.
So first, at the far end of the table, we have Paul Clement. [Applause] Paul is no stranger to The Federalist Society, as you can tell from the round of spontaneous applause. Paul served as the 43rd Solicitor General of the United States and has argued more than 100 cases before the U.S. Supreme Court. Paul is obviously a formidable litigator, but he also has an academic pursuit. And he’s so interested in that academic pursuit that he’s actually going to leave us early to go teach his class at Georgetown Law Center, so when he leaves us early, please know it’s not something that one of us said. [Laughter]
Next, we have the Honorable Britt Grant of the U.S. Court of Appeals for the Eleventh Circuit. Judge Grant brings not only the perspective of the Federal Court of Appeals but can also bring us a view from the states. Before her appointment to the Federal Court, Judge Grant was Justice Grant of the Supreme Court of Georgia, and before that, she was General Grant but not that one. She was Georgia’s Solicitor General.
The Honorable Jim Ho sits here to my left. Judge Ho serves on the U.S. Court of Appeals for the Fifth Circuit. Before taking the bench, he was a partner and co-chair of the Appellate and Constitutional Law practice group of Gibson, Dunn & Crutcher. Judge Ho, too, can share some views from the states, having served three years as the Solicitor General of Texas. And back when Judge Ho was just a baby lawyer, I had the pleasure to work with him in the Justice Department.
Our next speaker brings a view from the academy. Professor Bernadette Meyler is the Carla and the -- Carl and Sheila Spaeth Professor of Law at Stanford Law School. And I just butchered that, and having come from the academy, I know that it is very important to say the names of the endowed chairs correctly, so I’m going to say it again: the Carl and Sheila Spaeth Professor of Law at Stanford Law School. Professor Meyler is a scholar of British and American constitutional law and of law and the humanities. Her current book project will be of great interest to those in the audience, entitled, Common Law Originalism. It looks at various eighteenth-century common law meanings of various constitutional terms and phrases and, I take it, expresses some skepticism over our ability to lay hands on a single determinate meaning for much of the Constitution.
Next, we have a voice from the states. We have with us the Honorable Jason Miyares, Attorney General of the Commonwealth of Virginia. General Miyares was elected Attorney General in 2021 and, from 2015 to 2021, served in the Virginia House of Delegates. He also brings the perspective of a local county prosecutor, having started off in the Assistant Commonwealth Attorney for the City of Virginia Beach.
Finally, we have Elizabeth Wydra. She is the President of the Constitutional Accountability Center. In that role, she is a frequent litigator and a contributor to our national conversation on the Constitution. She joined CAC from private practice at Quinn Emanuel in San Francisco, and she, too, spent some time as a teacher, a supervising attorney, and teaching fellow at the appellate litigation clinic at Georgetown Law School.
So with that terrific lineup and this large panel, we have decided to dispense with the traditional format of opening statements and get right to some questions. So I will pose some questions for our panelists. Hopefully, somebody will take the lead in answering them, but others should feel free to jump into the conversation. And if time permits, we will open the questions, of course, for the audience at the end.
So I thought we might start with some methodological questions. And for the most part, when people talk about originalism today, we’re talking about the search for the original public meaning of the Constitution. That contrasts with an earlier vision of originalism, which focused more on a search for the intent of the Framers. But if we’re looking for original public meaning, I think we should ask the question, “What does that actually mean? Whose meaning are we seeking, and how broad is that lens?” And I think Elizabeth Wydra might have some perspectives on that topic.
Hon. Elizabeth Wydra: Yeah. Thank you so much. Thank you so much, Judge Larsen. And thank you so much, everyone here, for joining us this morning, and thank you for Dean inviting me to be here to talk about this really interesting subject with such an esteemed panel. I think that that question is still something that is being debated and disputed and explored. I come from an organization that focuses on originalism, and while we are nonpartisan, we are avowedly progressive. So when I take a look at whose voices perhaps should be included in the search for original public meaning, my lens seems to be broader than, for example, the lens that was included in Justice Alito’s Dobbs opinion or Justice Thomas’s Bruen decision.
And I think that it’s a challenge to us litigators to make sure that we are presenting a broad variety of voices whose opinions about the original public meaning matter. It’s a challenge to the academy, for sure, to discover, uncover the thoughts and debates of groups that have not always been the focus of historical analysis. There’s been some really fantastic recent work about the way that Native Americans understood the original public meaning of various constitutional provisions.
There is work out there already about how when the Reconstruction Amendments — Thirteenth, Fourteenth, and Fifteenth Amendments — were being ratified, the very rigorous debates that were going on in the African American community. And I think far too often the decisions that we see reflect the views on original public meaning of the, perhaps, most powerful group of people at the time. We are, understandably, looking back 100 years, so if you think whose voices are going to be recorded more frequently, those are probably the easiest to access. But it doesn’t mean we shouldn’t try harder because if you think about who was going to be deeply impacted, for example, by the Fourteenth Amendment, the people who had been freed after the Fourteenth Amendment from -- after the Thirteenth Amendment from enslavement certainly had a very substantial stake in what the Fourteenth Amendment meant: what kind of freedom that they had been granted in the Thirteenth Amendment, what that would mean, what the contours of that freedom would mean.
So to me, when I’m looking at original public meaning, looking at black newspapers from the time, looking at the way that the -- there were conventions of black activists and freed African Americans. Their debates and their views on the original public meaning certainly should be included in that lens. And, I think, as we have scholars doing more of this work, doing more of this excavation, then I think that conversation will only become richer and probably more reflective and representative of the true original public meaning of all of the folks whose views and voices should count.
Hon. Joan Larsen: Yeah. Sure. Professor Meyler.
Prof. Bernadette Meyler: Yeah. I would just love to add a bit to what Elizabeth was saying, which I think is part of -- looking at the different voices also is about what kinds of governmental materials are examined in an originalist investigation. So if a court is looking primarily at, say, state statutes, then the court might be excluding a number of voices that weren’t represented at the time of the enactment of those statutes. Whereas, if we think about looking at legal practices or, say, common law meanings, that may actually allow for the inclusion of more voices than looking at state statutes because even enslaved persons often appeared before the judiciary, that there are ways of excavating different voices through, say, the common law tradition that might not be apparent within the, say, state statutes or the work of representative bodies. So I think that being attentive to what kinds of governmental sources are used as well as looking at the kinds of newspaper sources and other sources that Elizabeth was mentioning is another way of opening up the conversation when you’re looking at different voices that are part of a conversation about original meaning.
Hon. Britt Grant: I’ll add one thing, too, if I might. Excuse me. I think original public meaning has become the main lens of originalism, but to Dean’s point, I don’t think that originalism as a scholarly or judicial enterprise has been completed as a project. And I’ve recently heard presentations about original methods originalism or original law originalism, and I think it’s important as we continue this project to be open to new ideas about how we can best interpret the Constitution or even statutes. I think that’s an important thing to consider.
When we think of originalism, we often think of just the Constitution, but in my experience, both at the state courts and at the federal court, sometimes I was looking at statutes from the 1800s to try to figure out what appellate procedure from 1964 in Georgia really meant. And so, I think it’s important to really keep our eye on all of the options for originalism as an interpretive method and to keep open, keep reading scholarship, thinking through all this -- all those different aspects of it.
Hon. Joan Larsen: Paul.
Hon. Paul D. Clement: So I’d just like to, in a couple of the earlier remarks, just sort of concur in part and dissent in part. I’m not a judge, but I still like to think I can do that. [Laughter] I completely agree with Elizabeth that when you’re interpreting the Fourteenth Amendment, that taking into account the understanding of the original public meaning in the African American community’s absolutely essential. I’ve used that to argue that actually the Freedmen and the Freedmen Bureaus had a robust understanding that the Fourteenth Amendment was going to protect their Second Amendment rights. And that’s exactly what they understood was part of the protection that they were getting through the adoption of the Fourteenth Amendment. And I do think, more generally, sometimes, The Federalist Society folks, we love to look at sort of Madison and Hamilton, and we’re not as interested in the Reconstruction Amendments, and I don’t know why that would be the case.
The Reconstruction Amendments are hugely important to the extent that they are the vehicle through which the Bill of Rights is incorporated against the states. There’s a robust debate about what original public meaning matters: 1789 or 1868, and I don’t know how that’s ultimately going to be resolved. But personally, I think, 1868’s got to be hugely relevant, and I think some of the leading Reconstruction-era senators are folks that we ought to have -- I don’t know -- panels named after or something. I think we should really be focused on that because it’s a huge part of our constitutional history, so I totally agree with that.
I guess where I dissent in part is I think the project of consistently trying to unearth something that was obscure even in 1789 has really limited utility. In the context of arguing the Bruen case, the folks on the other side unearthed a third reporter of Knight’s case that was a little bit different from the two standard widely circulated reports of that decision and tried to make something of it. But there’s -- if there’s an obscure report of a case in three libraries in England and no evidence that that report ever made it to this side of the Atlantic, who cares? The idea is we don’t care about what people were thinking in 1789 just for the sake of identifying somebody that had a goofy view of an otherwise fairly clear provision in the Constitution. What we’re -- I think the point of the project is to try understand what the people who were ratifying the Constitution and discussing the Constitution -- and I’ll spot Elizabeth this: I don’t think we only care about the people who could vote in the ratification process. I think we care about everybody in the body politic on this side of the Atlantic.
But if you come up-- if some great scholar comes up with some private diary of somebody in their own idiosyncratic view of something, I don’t care about that. That doesn’t seem at all relevant to the project, so I do think we got to -- you got to keep in mind the whole endpoint of the project in deciding which sources you’re going to credit and which sources really move the needle.
Hon. Elizabeth Wydra: I think that you’d probably fail the public part of the public meaning if it’s someone’s private diary, but I think we just have to be, I think, very cautious about noting what things might be obscured by the fact that certain historians have been doing historical work and haven’t been interested in certain voices versus what is obscured because it’s in someone’s drawer next to their bed. And so, when you’re talking about entire tribes, for example, debating parts of the Constitution that are very much relevant to their daily lives, that isn’t something that’s gotten a lot of attention because -- partly because some of the scholarly work is just beginning, but that is the type of thing that I’m saying is really important to include and making sure that -- there’s a lot of criticism, I think, of the project that people pick and choose what works best for them on both sides. And by being more inclusive with these voices, I think, we can have a richer view and more accurate view of original public meaning and also see the places where there is contestation, where there might be several different original public meanings and having to have the judges -- ya’ll have a hard job sometimes. It’s not always just super easy, one answer, and that’s going to be something that should be presented to the judges for them to interrogate themselves.
Hon. Joan Larsen: Judge Ho.
Hon. James C. Ho: So just to dive into this nice exchange we’re seeing, I like information, the more data, the better, just because I’m interested and want to sort to get -- make sure I’m getting the best arguments on all sides. So in that spirit, I certainly have no concerns and would agree with Elizabeth that I want to hear about everything. Having said that, I think we would want to be sensitive, of course, to are we seeing a situation where different communities have different meanings of words. Is it sort of -- there’s ordinary meaning that the community understands, and a particular community that sees it as a term of art. Is it genuine dispute over words having different concepts, or is it really just different communities having different policy preferences? Without knowing the details of some of the cases we’re talking about here because I wasn’t involved in those, I would be curious to see to what extent the differences are differences of meaning or -- versus differences of policy preferences.
I like Dean’s story about the toddlers and the fear of the shots. I’ll confess it reminds me of my own kids. Allyson and I have wonderful children and, frankly, somewhat weird children. These are the only kids you’ll ever meet who do not like their birthdays because they are worried about going to the doctor for the annual exam and getting shots. I’m not kidding. They literally tell us they don’t like their birthdays for that reason. So I appreciate the story on a personal level.
Of course, the answer to the proposed interpretive fight in that story is does the child actually believe that anywhere means anywhere, anybody’s body, or does context make clear that it’s anywhere on his body? And so, again, he may want to say he that has a different community definition, but I do -- but I wonder if it’s more motivated reasoning than an actually good faith debate about the meaning of words.
Hon. Joan Larsen: All right. So since we have an expert on Bruen here, Bruen introduced something that might be -- I’m not sure if it’s new, but it certainly became prominent in Bruen, and that is a discussion of this phrase, “text, history, and tradition.” And so, one thing we might want to think about is what do each of those individual items — text, history, and tradition — play in a proper originalist analysis. Tradition is the one that really stands out on the list, and Judge Newsom, who was originally going to moderate this panel, wrote in a concurrence to his own excellent opinion. He wrote a concurrence to the opinion in which he has a footnote, which raises this question.
He said, “It’s never been clear to me what work tradition is supposed to be doing in the tripartite “text, history, and tradition” formulation. To the extent that tradition is meant to stand in for the original, i.e. historical, public meaning of the words on the page, it’s duplicative. And to the extent that it is meant to expand the inquiry beyond the original public meaning, say, to encompass latter-day-but-still-kind-of-oldish understandings, it misdirects the inquiry.” So I guess I’ll just throw out Judge Newsom’s musings and let you all muse. Anyone want to comment on what role tradition is serving? Paul?
Hon. Paul D. Clement: I’ll take a crack at it, not that I really think it has a lot to do with having argued Bruen, but I do think this is an emerging trend. I think that that also -- when the Court noted the death of the Lemon test and talked about what would replace it, it also talked about text, history, and tradition. So this is obviously -- it’s kind of a throughline in a lot of areas of the law, and so, it would be nice if history and tradition were not like a doublet that really had no independent meaning. It seems like if the Supreme Court telling us three things, we ought to try to differentiate the last two. I think one way of thinking about it is that you could think of history as being the things that predate the relevant time period, like the Framing, if we’re talking about that, and then the tradition being what follows the Framing to the point where the Court is reaching the interpretive question. And maybe I’m sort of very, very gently taking a little bit of issue with Judge Newsom’s framing. It’s never a great idea for a lawyer. But to me, I --
Hon. Joan Larsen: He’s not here.
Hon. Paul D. Clement: Yeah, well. That helps. That helps. But maybe a good illustration is something like the practice of legislative prayer, and does that violate the Establishment Clause? And you could look at the practice in England in the Parliament or the practice in Congress and the Articles of Confederation, and I think that you would say that’s history. And then, you would look at the fact that Congress had a chaplain in the First Congress, and all the same people that were proposing the Bill of Rights and the Establishment Clause, in particular, didn’t think there was anything problematic about having a chaplain. And then, you look at the fact that the Second Congress and the Third Congress and the Fourth Congress and the Fifth Congress and the Sixth Congress, etc., etc. all had the same thing. And then, in the 1970s, the Supreme Court is asked to say does this unbroken practice violate the Establishment Clause. Has there been a sort of lurking Establishment Clause violation going back to the Framing of the country?
And it seems to me that there is -- that it is perfectly appropriate for the Court to look at that tradition and to simply say, well, that stuff happened after the Framing, so it doesn’t really inform the original public meaning. I guess I would disagree, which is to say, first -- you could probably spot me the first twenty Congresses because that’s a bunch of people who might have been alive and well at the time of the Framing, but then, there is a certain humility that kicks in at a certain point. And there’s almost like a sibling resemblance with something like the major questions doctrine where just when you’re -- and whether you buy sort of the full-blown majority view or the Justice Barrett concurrence view, I think there’s a strain of judicial humility that sort of says, gee whiz, if somebody’s coming in and telling me something that has been going on a long, long time and nobody’s thought it either violated this constitutional provision or violated this statute, that is something that ought to be a strike against the person saying that this well-established practice has really violated the law all around. I don’t think it -- I think there’s probably a reason it’s third on the list. But it seems to me there is something there that’s different from history and probably does have an important role to play in interpretation.
Hon. Joan Larsen: Thoughts? Comments?
Hon. Britt Grant: I think I would generally agree with that, and I would say that whether we look at tradition as a reflection of settled understandings that, as Paul says, maybe judicial humility would suggest thinking really hard before we interrupt those settled understandings or some sort of liquidation throughout time. We’ve seen Founders discussing liquidation, and there are a lot of debates about what that means. But maybe that’s an idea where, even if it wasn’t entirely clear at the beginning, if we can see that there is a tradition of interpreting something a specific way, then maybe that’s something that we could pay attention to as well. So it’ll be interesting to see, as this doctrine develops and extends in other areas, whether we reach any consensus on what tradition means with respect to those two things.
Hon. Joan Larsen: Bernadette -- Professor Meyler? Sorry.
Prof. Bernadette Meyler: Yes. No, that’s okay. So I think that I see it going back a little bit further to the Washington against Glucksberg test for the Fourteenth Amendment due process inquiry and that their tradition is playing a role and a tradition of protection of particular rights. And I think that, in that context, we might wonder whether evolving tradition or a more static tradition is what should be looked to and whether -- and also how broadly a tradition can be defined. Is it a tradition of protecting parental rights per se or protecting the rights of a non-marital father? So I think that those are some of the issues that I see coming up with respect to tradition. It’s the question of how broadly a particular tradition is defined and also whether you’re looking to an unbroken tradition since the Founding or looking to the evolution of tradition.
And that’s where I might distinguish it a bit from what Paul Clement was saying about major questions because, in that context, it’s not just something that’s new that might be called into question under certain understandings of tradition but rather something that’s evolved away from the original meaning. So I think that sometimes there could be a conflict between, say, precedent or -- and I know there’s another panel on precedent -- and original meaning where the tradition that has evolved through precedent might have deviated from what people now think would be the original meaning of a particular clause.
Hon. Joan Larsen: Right. And I think an example of that might be if you think about the Crawford case. So we had a long tradition of substituting hearsay rules for confrontation. We did that for a very, very long time, and the Supreme Court, in Crawford, said, “No. We have to look at confrontation and what the original meaning of that is. And it’s not the same as the hearsay rules.” And so, despite the fact that there was a long tradition, we went -- we reverted to the original public meaning.
Hon. James C. Ho: Well, I wonder whether that suggests what I assume to be true but -- and not controversial but would welcome people to disagree. When we talk about text, history, and tradition, what I’m assuming we really mean is text. Text is what we’re looking at, whether you call it textualism or originalism. That’s what we’re interpreting as lawyers and judges. It’s to the extent where the text has -- is ambiguous. It’s capable of different of meanings -- competing communities, what have you, where we then look to other tools, whether it’s dictionaries or history or tradition or canons of interpretation or anything else.
You mentioned Glucksberg, and whether it’s Glucksberg or Bruen, I think, frankly, we’re all sort of eagerly awaiting to see what the Supreme Court tells us it means when it refers to history and tradition. Glucksberg seems to be the standard, revived and recodified in Dobbs. Tradition could, theoretically, include a lot of things. It does include economic liberty. You referred to parental rights. If we’re serious about tradition in addition to text, that opens up a whole new area of analysis, or is tradition subservient to text, which might take us to a different path. And I think the Supreme Court presumably will tell us at some point.
Hon. Joan Larsen: So maybe the test, as you would propose it, is text as informed by history and tradition?
Hon. James C. Ho: I assume that’s what we’re doing, but I’m waiting for the Supreme Court to teach us, so I can do what they’re telling us to do. It’s not always easy to do what they want us to do.
Hon. Joan Larsen: Fair. Speaking of -- that’s a perfect segue. So let’s talk about precedent. So what role does an originalist analysis preserve for precedent? Do we think of precedent as part of originalism, as sort of being baked into Article III’s reference to the judicial power? Or is precedent antithetical to a true consistency -- consistent commitment to originalism? Do the practitioners on the panel think differently about this than the judges? Anybody want to talk about precedent? Nobody wants to talk about precedent. Okay. So the Supreme Court -- I’ll talk about precedent.
Hon. James C. Ho: It’s like Bruno.
Hon. Joan Larsen: So the Supreme Court has told us -- for those of us on the panel who are middle managers, right, appellate judges, we have to do what our nine bosses tell us, and we try very hard to faithfully follow what they tell us. And one thing that they have told us very clearly -- you might call this -- I like to call it the Agostini principle. Some people call is the Rodriguez [inaudible 00:50:39] principle. But one thing they’ve told us very clearly is that when there is a case that is directly on point, even if we the lower court judges look around and think, “Gosh, the foundations of this precedent have been undercut. It doesn’t seem consistent at all with the way that the Supreme Court is telling us to approach cases.” Now, the Supreme Court has told us, “You are to apply our precedent when there’s a case directly on point, and we, the Supreme Court, will overrule our own precedence. Thank you very much, lower court judges, for your input.”
So I try to do that because that’s what they told me to do. But one thing that I think about often is whether that’s consistent with the judicial role. If you think that a case is wrongly decided, if it’s a case that wasn’t decided using an originalist methodology, if you think it’s a case that you’re pretty sure the Supreme Court would overrule, what do you do as a lower court judge? So I can toss that out to the other judges, or I can keep talking, but it’s probably more interesting to hear from you.
Hon. James C. Ho: I’ll take a quick stab at it. So this is one of these eternal debates that I have with -- I’m sure many judges have with law clerks, which is -- the argument will be, “Judge, you didn’t swear an oath to uphold Supreme Court precedent. You swore an oath to uphold the Constitution. So does that suggest that you get to do whatever you want in terms of interpreting the Constitution?” It’s an interesting argument.
It’s obviously trying to look at the words of the oath, and it’s a view that’s held by, to my knowledge, not a single member of the federal judiciary, [laughter] for any number of obvious reasons. It’s a hierarchal; we don’t want to be fired; we don’t want to overturned, etc., etc. Or if it’s anything else, you’re just kind of bumping your head against the wall. Right? The Supreme Court’s going to do what it’s going to do, and we have to follow it.
The way I’ve tried to reconcile it — and I often cite Judges Bumatay and Bush because they’ve written a lot on this topic — is we’re duty-bound to -- if you believe in originalism, which I just sort of think of as lawyering, then we’re duty-bound to be faithful to the text and original understanding of whatever words we’re supposed to be interpreting to the maximum extent permitted by a faithful reading of Supreme Court precedent. Now, obviously there are some words there that require further fleshing out, and I’m interested in sort of seeing how we flesh these out in future cases, but the point’s -- to me, the main things are maximum extent consistent with a faithful reading of precedence. That’s sort of how I try to wrestle with it at a sort of abstract level, and now, we have to sort of implement that in subsequent cases.
Hon. Joan Larsen: Does that mean that you would read a precedent -- the strict command is when there is a case directly on point. And does that influence how broadly or narrowly you read the precedent?
Hon. James C. Ho: I think that’s what the word, “faithful,” is doing. Right? So you could say, “Well” — to use a very silly, stupid example — “the facts of that case -- that Supreme Court were done on a Tuesday. This is on a Wednesday. Obviously, that’s not faithful.” And so, you have to figure out what is the precedent. What is the rule that is being imposed on us by that Supreme Court decision?
And we try to be faithful to it, but we don’t have to extend it to situations that go outside of it. I fully acknowledge that leaves a lot of open discussion for what does it mean to be faithful, and as I said, that’s -- one sort of modest thought that I’ve seen fleshed out is you don’t want to make the law completely illogically by making it -- by distinguishing in ways that are utterly unprincipled. And so, that might be an initial take on that.
Hon. Britt Grant: I think the question for us is very different than, of course, the question for the Supreme Court. Right? So I think they -- I think the question that they deal with is, to my mind, the most difficult one in originalism, which is where is that line between sticking with precedent, and it’s -- in certain cases, you know you have to overturn it. Right? We all know the classic cases that I won’t list here, but I think for us, as circuit judges, it’s a different question. I think I agree with Judge Ho about reading -- I won’t resay what he said either, but I think sometimes, though, there’s a kind of administrative rule to precedent that we also forget about.
I think the Eleventh Circuit has a unique background in this because, having split from the Fifth Circuit, the court made a very conscience decision to adopt all the precedence of the Fifth Circuit for our own. So in almost every single Eleventh Circuit case, you’ll see a footnote citing Bonner v. City of Prichard. I’m maybe messing that up, and I see it so much. But the point was the fact that a panel of this court may come out differently on one issue one time was not worth all of the upset to people’s understanding, lawyers’ understanding, litigants’ understanding of how they needed to put their behavior forward. So I think, as a -- on kind of the smaller issues, I think precedent becomes very important as an administrative matter. And then, on the more publicly divisive issues, I think it’s really interesting to see how we can apply some of those same tools in a thoughtful way and make sure that we’re fulfilling our duty to the Constitution and as intermediate appellate court judges as opposed to the ultimate deciders on the Supreme Court who, as you say, give us certain instructions about what to do.
Hon. Joan Larsen: Right. So I wonder to what extent that Agostini principle influences the way that lawyers think about presenting arguments to intermediate appellate courts. So if you’re a litigator and you think, “Look, this case is governed by precedent; it’s a constitutional question, but it’s governed by precedent,” are you just going to argue the precedent and then save the originalist fire for the U.S. Supreme Court? Or do you think about, “Well, maybe there’s an opening here; maybe there’s a way to read the case narrowly, the precedent narrowly,” and convince the panel that there’s an opening?
And part of this -- I wonder about this because, having been on the federal court now for, I don’t know, five years, maybe six years, we get very little briefing in our court that engages actual originalist methodology. There’s a case the Supreme Court just heard called Culley v. Marshall. I think that was last week. It involves the forfeiture of automobiles and whether you have a right to a pre-termination hearing when your vehicle is forfeited. Our court had decided a merits case on that. I was not on that panel, but the case was presented to a panel I was on earlier, the same question, and we dismissed at the motion-to-dismiss stage, so we didn’t reach the merits.
But in that litigation, there was no originalist briefing whatsoever of -- the litigation, as I recall, involved should we apply one of two doctrinal tests made up by the Supreme Court, the -- a balancing due process -- Mathews v. Eldridge balancing test or the Barker v. Wingo, also balancing test, out of the Speedy Trial Clause. And that’s the way the case was framed. I’m listening to the oral arguments last week, thinking, “Oh, I know what this case is about,” and they’re talking about, “Well, should we follow the historical analysis presented to us by this group of amici or by this group of amici?” And I thought, “Wow. It really would have been helpful to have some group of amici. That might have really been a nice thing.”
So, I guess, the question is as somebody litigating in the appellate courts, do you present your originalist case? Should you present your originalist case, or should you just hold your fire for the Supreme Court when all the guns will come out, and they’re going to get the best advocacy, and they can come to the best conclusion that way?
Hon. Jason Miyares: I think it has been an interesting transformation, particularly in the state courts, what we have seen, where they’re now -- traditionally, they have outsourced and not used federal interpretation to interpret their state statutes. I think we’ve seen the opposite in the last several years, almost a revolution. I know that we have a case in Virginia, the West Point School Board case, where we actually made the argument to our solicitor, Andrew Ferguson, I think, quite robustly, looking at the Virginia statute of religious freedom and also looking at the -- both the original intent and the tradition of that. That was originally introduced in 1779 in the Virginia General Assembly at the genesis of Thomas Jefferson carried by a young, quiet delegate from Orange County, James Madison, with vehement opposition by a very vocal member of the General Assembly named Patrick Henry. And the origins of that really was that Patrick Henry had introduced legislation that was going to seek state support for the newly minted Episcopal Church in Virginia. Problem is almost every other Christian sect was horrified by this, and there was some vehement opposition.
And so, when we looked at -- when our solicitor argued it, we pointed out — in Virginia and it was reaffirmed; it was actually passed in 1786 by the General Assembly, and it was reaffirmed in 1971 — that the Virginia statute provide much more robust protections than the First Amendment Free Exercise Clause. And so, I thought we were able to make, I think, a pretty compelling argument, looking at the history of that, of the very explicit language that nobody should be burdened by practicing their religious beliefs by the state. And I’m not going to necessarily get into the facts of the West Point case because, candidly, it’s still pending in front of the Supreme Court. But I thought that was a great example of both using originalism and the precedent of what our case law was in a new setting in state court, which previously hadn’t really been done before.
Hon. Paul D. Clement: Yeah. And Judge Larsen, I think from the perspective of federal court practice, at least the way I would answer the question, is it depends. And it depends where you are in the litigation. Are you trying -- where is the precedent? Is this a case where you really think you can maneuver around a Supreme Court precedent? If you are -- if the whole point of the litigation is to get a Supreme Court case overruled and the lower cases are hemmed in by the Agostini approach, then I don’t think there’s any point in pretending that those courts can overrule Supreme Court precedent. I think, in those circumstances, there’s one of two playbooks, and I’ve seen people do it both ways.
There’s a playbook that, I think, Mike Carvin used in trying to get the overruling of Abood back in front of the Court after the Court had signaled it, and he basically went into district court and said, “Hello. I lose under Abood. Please rule against me very quickly.” And then, he went to the Ninth Circuit and said, “Hello. We lose under Abood. Please rule against us very quickly.” And then, he filed the cert petition and got cert granted.
So that’s one approach. But you got to be pretty confident, a, that there’s no wiggle room, and, b, that there’s going to be a cert granted at the end of the rainbow. And so, if you’re litigating in a situation where it’s not that clear, you’ll try to get around it. You might use originalism. But I guess, this gets to a broader question, which is -- one reason you might do that as a litigant is one of the things that I think is a legitimate move for court of appeals judges, notwithstanding the Agostini principle, is there is this thing called the concurring opinion. I know Judge Ho’s used those from time to time.
And I don’t think there’s anything wrong with basically a judge saying, “I’m totally bound to apply the Supreme Court precedent, but I’m going to tell you in my concurring opinion why I think it’s wrong and why I think it would be useful if the Supreme Court revisited it.” And I think that’s both legitimate and, frankly, important because one downside of the Agostini principle is -- it’s great, and it’s orderly, but then, it doesn’t provide a great signaling device to the Supreme Court of the United States as to when they should reconsider their precedence. And they turned down a lot of cert petitions in my experience, so having something like a concurring opinion to point to can be really helpful.
Then, let me just say one other thing, which is -- so I think your point, Judge Larsen, really points to the -- kind of a broader phenomenon, which is one thing that’s a little weird about our system is that cases look a lot different in the court of appeals typically than they do in the Supreme Court of the United States. And that’s kind of weird in a system that’s supposed to be about that vertical review. And part of it is inevitable. The average court of appeals case probably has four or five issues in it, and they have to cover all those in the word limit. And then, it gets up to the Supreme Court, and there’s just a single issue there. The number of amici is generally smaller. I guess my thought, though, is if I were a court of appeals judge, I would, in cases that I think had a good chance of getting to the Supreme Court, I would try to narrow that gap.
And again, I think there are legitimate ways to do that. One example is that the -- if you have cases where it’s almost inevitable that the Supreme Court is going to call for the views of the solicitor general and be quite interested in what the solicitor general has to say, if I were a lower court judge, I would call for the views of the government -- the relevant government agency myself. Otherwise, it seems like you’re setting yourself up for failure because the Supreme Court’s going to be looking at something that’s very influential to them that you didn’t even give yourself a chance to look at. And similarly -- and maybe the judges on the panel would disagree with me, but I think if you’ve got a case where you really think this could go to the Supreme Court and you think there’s important historical literature that amici could bring to bear and the parties have dedicated all of three paragraphs to the argument, I don’t think there’s anything legitimate -- illegitimate, rather -- about a supplemental briefing order that invites the participation of amici.
Again, maybe you think that’s overreaching. Maybe you think that violates the strict Silberman-esque view of the Article III courts are stuck with the briefing of the adversarial parties, no matter how lousy. But I tend to think that’s a legitimate move, and it narrows that gap because I would think it’s very frustrating, as a court of appeals judge, to have the Supreme Court deciding an issue where, by the time it gets to the Supreme Court, it just is unrecognizable.
Hon. Joan Larsen: That’s actually one of the first things now Chief Judge Sutton said to me when I came on the court is, “There’s a lot of things you’re going to learn about what it’s like to be a court of appeals judge, and one of those things is you’re going to decide a bunch cases, and they’re going to get upstairs, and you’re not -- you’re going to say, ‘Oh, wow. I didn’t know that’s what this case was about.’”
Hon. Elizabeth Wydra: So I just want to apologize. One of the briefs that Justice Barrett was talking about in the Culley oral argument was indeed filed by the Constitutional Accountability Center, so I apologize for not filing that brief in your case.
Hon. Joan Larsen: Accepted.
Hon. Elizabeth Wydra: Yes, it is truly a resources bandwidth question. But it’s -- that is, I think, a :real issue for the lower court cases because -- and it could be solved, as Paul suggests, by inviting amicus participation, but good originalism takes time, and it takes expertise, and particularly, on the left, there are not that many of us who are practicing it. And CAC is small but mighty, but we can only do so many cases. And I like my fellow colleagues to be able to sleep some time. And so, being able to write briefs that have that rigorous, credible originalist analysis takes a lot of work.
And so, it’s one thing when it’s in the Supreme Court, but it’s another trying to cover all the ground of the courts of appeals. And I think that’s a real challenge for judges because then are you trying to do it yourself. Are you asking for amicus participation? As a litigator, I want to give you the best argument, so I would like for my side -- whatever side I’m advocating for to be giving you those arguments. But that is not always possible in every case.
Hon. Joan Larsen: Yeah. Professor Meyler.
Prof. Bernadette Meyler: Yeah. I was very curious about everyone’s take on whether or not to invite amicus participation at the appellate level, but I also wanted to introduce another element, which is just that I think some Supreme Court cases are directly lower courts, especially district courts, to actually engage in more originalist inquiry, especially if you think about the aftermath of Bruen, that in order for the government to kind of demonstrate that there were analogous statutes at the time of the Fourteenth Amendment, that, in a way, they’re going to have to already be doing originalist analysis at the district court level. And I’m also curious about how people feel about the expenditure of time on originalist analysis in that context as well.
Hon. James C. Ho: So just to follow up, there are two things that have been said that I -- that are interesting to me. One is the resource limitation issue, and the other is the amici aspect. So on resource limitation, I was actually a litigator, an appellate litigator, longer than I’ve been a judge, and what strikes me as resource limitations are a huge issue on both fronts. In practice, obviously, it’s the limitations of your client. Some clients want to do full [inaudible 59:07]; other clients won’t. I think Paul is absolutely right. It depends on the nature of the case. The lawyer has to make the call about what’s valuable.
The resource limitations issues is also very serious in the judiciaries, particularly court of appeals. As practitioner, let’s say you argue, what, one case a month, one every other month, more than that. Whatever the number is, it’s some handful of cases that you’re getting involved with on a per-year basis. That provides you a decent -- hopefully, a decent amount of time, assuming your client’s willing, to really get in deep to make sure you’ve maximized every aspect of whatever legal issues are presented in your case. On the Fifth Circuit, we do 20 arguments per sitting, per month, seven sittings a month, and that’s just the argue cases in addition to all the other matters that we have to deal with. And so, the resource limitations are very serious, and so, we are essentially looking to lawyers to present briefs that are hopefully well-written and cover the waterfront.
And the way I think of it is if it’s not in the briefs and we think it’s important, we can dive in ourselves and try to -- obviously, we have party-presentation issues and forfeiture issues and whatnot, but as long as you presented the issue, we could theoretically do our own additional -- make sure you found all the cases and all the right authorities. But what I struggle with is every single minute I spend diving deeper on one case is time I’m taking away from every other case on my docket, never mind my family and my sleep. And so, I think the resource limitations on both sides of the bench, the podium and on the bench, are important aspects of this issue.
As to amici, I like amici. I liked it when I was a practitioner. I think they can be helpful. Obviously, the “Me Too” type of amicus brief where you’re just repeating what somebody else says, that not terribly helpful. It’s just a waste of space. But when it’s a good amicus brief, that can be wonderful.
And it’s not necessarily that the practitioner -- the party lawyer has messed up. Maybe they’ve omitted something, but maybe the amici has an angle that it’s more awkward for a particular party to present. I was involved in a case, one of these pre-Bostock-type cases where we invited amici, one particular amici, to argue because neither side had argued that Title VII doesn’t apply to certain classifications. So we invited amicus to do that. Having said that, I get nervous about doing that too much. I’m not sure why. Maybe it’s the silver mask view of the world. I certainly would be wary about playing favorites, signaling where a court is.
In the case that I mentioned where we did it, it was literally because we had one side of the case not represented. And so, we needed somebody to literally fill in a position. It’s sort of like when the Supreme Court invites somebody when the government confesses error. It’s that sort of thing. You just want the adversarial process. Beyond that, I’m -- put me as not sure.
Hon. Jason Miyares: And I would say, just from the attorney general’s perspective, what we have seen is, particularly when you’re looking at amicus, you have state AG offices that are very under-resourced, and often times, they will look to team up with states with larger AGs office that maybe are aligned philosophically. And essentially, it’s a way to pull our resources together, which we do all the time, whether it’s a multi-state investigation. But we’ve found that repeatedly, what I have seen — it’s actually one of the things that has surprised me in my role is how much coordination there is with the other comparable state AGs and their SGs in working together on amicus briefs, almost like assigning homework assignments, of, “Can you help state X on this matter?” And everybody does each other a kind of solid when they need assistance themselves. And I have found it invaluable because what you’re able to do is you’re to engage more and maximum your resources, and you’re really able to help some of these states that have very, very small SG offices and able to really assist them, to provide resources. So I view it as invaluable.
Hon. Britt Grant: I’ll add two things. First, to follow up on his comments, when I moved from private practice to the state attorney general’s office, I almost immediately within six months thought, “Wow, if at least a few of these cases that I was, I wish that we had reached out to relevant attorney general offices to ask them if they would be interested in filing an amicus brief to tell them about this case that was going to really affect the states in very particular ways.” And the courts didn’t have the states’ perspectives, and I think it might have made a difference in at least one and maybe two cases that I can think of right off the bat.
So I would say don’t ask states -- as he says, there are resources issues. Don’t ask states just willy-nilly but really think through. If you’re litigating an issue that’s going to make a big a difference to the states, it’s going to have an impact on state laws, even if it’s a federal case, then don’t hesitate to try to find those connections, try to reach out to the attorney general’s office, and let them know about the case. They may or may not be able to get involved, but I think the states do have a very important perspective in our system that -- thankfully, the states are litigating more and more and filing amicus briefs more and more. But I think it’s an area that still has room for additional growth.
And the other thing I’ll say about the adversarial process is so many of our doctrines are designed around the adversarial process. Right? Standing has been a really big question in the Supreme Court and the circuit courts lately. And I think when we think about doing it all on our own, we forget that so much of our system is designed around the idea that litigants will have the right incentives when they have a problem to really try to figure out the best arguments in favor of their position. And as judges, we’re just not always situated to figure out the best arguments in favor of one position and to realize that there are arguments on the other side, maybe from perspectives that we haven’t considered. And so, to my mind, briefing is really important and really helpful almost any time you’re digging into one of these questions. And I hope that, in both state and federal courts, we’ll start to see more of it as lawyers become aware that a lot of judges are thinking about these things in different and expansive ways.
Hon. Joan Larsen: So we’ve been talking a lot about -- almost exclusively, about originalism as it’s practiced in federal court. We have here a former state Supreme Court justice. We have the attorney general of a state. General Miyares touched on this already a little bit, but I wonder whether there’s something different about doing originalism when you’re talking about interpreting a federal constitution, which the wrap on originalism that you hear on the -- from its critics is, ‘Oh, the federal Constitution is old, and it’s impossible to amend, and therefore, the judges need to update it.” That would be the critique.
I wonder whether that same -- those same concerns exist in most of the states, not all, for those of you on the Eastern seaboard. For those of you from Massachusetts with your Constitution of 1780, okay, I yield. But I come from a state which ratified its most recent constitution in 1963, so it’s not old, and it’s not hard to amend. It’s super easy. You can amend the Michigan Constitution -- not super easy but comparatively easy. You can amend the Michigan Constitution by initiative. We saw it happening in states just yesterday. And so, I wonder whether the arguments against originalism have less weight in state courts, and I wonder whether there’s anything different about doing originalism when we’re talking about a state constitution.
Hon. Jason Miyares: At least from my perspective, Jefferson called the states the laboratories of democracy, and I find it fascinating that you’re having this kind of, not revolution, but a rethinking — Judge Sutton and others that have really pointed at using originalism in our state constitution. Obviously, Virginia and Massachusetts and others have a unique history of our own, just given the both depth and breadth and the history. But I think it’s absolutely a useful tool. Every state amends their constitution differently, as we all know. Obviously, Ohio does it by referendum. You have to have a requisite number of petition signatures to get it on a ballot, and then, it’s simply 50 percent of the voters.
In Virginia, it has to be passed by the General Assembly, both the House and Senate. It never goes to the governor’s desk. There has to be an intervening election of the Virginia House of Delegates, and then, the newly constituted General Assembly has to vote on the exact same measure, the exact same wording, cannot change so much as a comma. And then, if it passes, then it has to go to be ratified by the voters that November. So the Virginia Constitution is more difficult to amend than, say, the Ohio Constitution, but obviously, we have an amendment process that probably some would say would be easier than amending the federal Constitution.
I view it as an absolute tool that should be used at the state appellate level. I don’t think you should outsource it to a federal interpretation. I think you should look at -- I think you should have your state judges be looking at both the history, tradition, and the original meaning of the text because our constitution is relatively new in Virginia. And so, I think we’re in a totally different place than maybe what other people think, but from my perspective, I view it as an absolute useful tool, and I’d like to see more judges using it in Virginia, applying it to our state constitution and state law.
Hon. Joan Larsen: Go ahead. Professor Meyler.
Prof. Bernadette Meyler: A thought about using originalism in the state context. So I think one of the reasons, potentially, for the move to original public meaning rather than original intent is the fact that we have no official notes of the federal convention that established the Constitution. We have Madison’s notes on the Convention, but it was not supposed to be recorded. So there’s a way in which there is a lack of contemporaneous information. We have to derive insights from a retrospective account or from very piecemeal accounts of various participants.
Of course, that’s not exactly the case with the Reconstitution Amendments. We can look at the Congressional record for those. But I think that that influences a bit the tone of originalism within the federal context, and I think that the fact that, in a lot of state contexts, we do have availability of deliberations about the constitution perhaps might lend itself towards having more argument about what the meaning of particular clauses of a state constitution might be based on the original intent rather than original public meaning.
Another consideration, though, I think does have to with the referendum process. And I know, coming from California, there are a number of fairly poorly drafted measures that have been put on the ballot, and it’s not entirely clear that the public explanations given for them were accurate or really reflected what the language actually says, and the drafting itself isn’t really very easy to pin down. So I think that that raises some complications. What exactly were voters voting on? And it raises some questions about how to kind of interpret a clause like that. And I think that that is somewhat different from the federal context where amendments go through a much more rigorous and much more lengthy process. And so, you would have a lot more material to go on in terms of determining what the original public meaning of a federal amendment was.
Hon. Elizabeth Wydra: I think that’s a really great point about the availability of sources and clear sources for some of these analyses because if we don’t do a rigorous analysis, then it’s not really helpful to the judges. One area in which Constitutional Accountability Center has been able to participate in state courts, even with resource limitations, is many state constitutions incorporate by reference either the text explicitly or the values of the Fourteenth Amendment or the Declaration of Independence. And so, we’ve been able to file in state cases under state constitutions that include that reference because we have done the originalist work on those amendments and the principles and values of the Declaration of Independence.
Hon. Britt Grant: You see in state constitutions, I think, interesting interpretive principles, and legal fiction sometimes start to take place. And one thing that you said reminded me. On Georgia constitutional amendments, the rule -- obviously, the amendment is typically longer than you can have on the ballot, and the rule that the Georgia Supreme Court put in place decades ago is the description on the ballot has to be enough to let the voter know which constitutional amendment they’re voting on under the legal fiction, that that will allow everyone to think back to the time when they personally and individually before the vote reviewed the text of the constitutional amendment in full to determine whether they wanted to vote for it. So it’s interesting.
In Georgia, too, there’s a rule that we -- if you -- if the Georgia Supreme Court had an interpretation of a provision and then the constitution was amended on a large-scale basis and that provision stayed, then the view is that the writers of that particular constitution were aware of this Georgia Supreme Court opinion and did not intend to change it in any way. So that’s locked that provision in, almost in perpetuity. And so, I think some things are certainly easier because we have more modern language, especially with the amendments, but some things are a little bit harder because of these interpretative conventions and some of the difficulties with the direct-to-the-people voting that we’ve discussed. So I think there are things that are easier, things that are harder, but I don’t think that it -- I don’t think it makes it more defensible to do it because I think it’s our duty as judges to interpret what the law is. And whether you’re at the state or the federal level, the Constitution, until it’s changed, is the law, and it’s our job to figure out really what that said and to give our best effort and use all the tools that we have.
Hon. Joan Larsen: Okay. So we’ve talked about federal courts, and we’ve talked about state courts. And I don’t want to put too much burden on Professor Meyler, but I don’t think we should neglect the academy. And so, I have two broad questions. The first is probably directed specifically to Professor Meyler, which is she’s an actual legal historian, and so, one question I have is how does a historian approach originalism, the process of divining the public meaning of a particular constitutional provision. And does that differ from the way that courts and judges might do that, or is it the -- basically, the same project? So that’s my first question. And then, I guess, the second question would be are the law schools helping. Are they helping us to -- helping our -- the students to become practitioners who can deploy these tools?
Prof. Bernadette Meyler: Great. Well, thank you so much for giving me that opportunity. So I would say that historians -- and I’m not a PhD in history. I’m a PhD in English, so I think of myself as doing work on kind of interpretation as well as history, although my work was in early modern England. And I think that one way in which historians approach originalism may be differently than lawyers or practicing lawyers does have to do with the resource question that came up earlier because, I think, we have more opportunity to delve in-depth into particular provisions over a longer period of time. We can do archival research that might take a very long time.
I had a project that dealt with the New Jersey decisions, pre-Constitution, of the various local courts in New Jersey. And it turned out that the archives and records in New Jersey couldn’t find the materials for a year, but then, that was fine because my project could take two years. That would not be okay on an appellate court level. So I think that that’s one way in which there is a big difference.
Another difference, I think, has to do with one of purpose. Right? So my colleague, Jonathan Knapp (sp), has recently written a book on originalism and history. We are -- he is bringing forward various ways in which historians would critique the practice of originalism for contemporary purposes and looks at a variety of different factors of why there might be a different objective in unearthing the history as opposed to applying it today. And one of the main issues really has to do with context, right, so that if we’re bringing to light some original meaning of a clause from 1789, then we may be taking it out of the context in which it was created. There may be -- according to Jonathan’s account, a written constitution meant something different in the 18th century than it does today. By deracinating the -- a provision from the general constitutional context, we’re misunderstanding it.
Now, I think that it’s important, nevertheless — and this is sort of my interpretive lens — to try to create some form of continuity between the moment of the Founding and today, that we can’t just take it as an alien document that was one thing then and is another thing now so that there is a need to engage in interpretation in the same way as we would try to interpret Shakespeare today and have a relevance for Shakespeare today. But I do think that because historians have more, say, time on their hands to engage in the effort that there’s going to be a survey of more sources. There’s going to be more openness to a less determinant meaning. Right? So I think that a lot of the clauses, if you look at a lot of the original materials from the colonies as well as from England, you see that there isn’t necessarily one determinant meaning that can be pinned down of the common law background of the Constitution. I think that’s not as much of a problem for historians as for judges who are trying to apply the Constitution in the present.
And on the front of our law schools helping, I think it’s an interesting question of what exactly the law school pedagogy is now. So teaching a first-year law school discussion seminar on histories of legal education and if you look from Langdell, who founded the American legal education system through the present, there is a remarkable continuity, actually, of what are the required first-year classes, and based on Langdell, we focus almost entirely on cases. Right? And that’s the -- case method was kind of sanctified in the late 19th century as the way that we approach teaching law students. And I think that some originalists, certainly my colleague Michael McConnell is among these, have kind of brought in more original sources in teaching the Constitution. I bring it in in my classes sometimes. And in other classes, we have deep dives into history.
There’s more interdisciplinarity, so I think that more historians are teaching in law schools by one count of one my colleagues. At a meeting recently, he thought we have nine legal historians on the faculty. So there’s an effort to kind of bring in more of those perspectives. But I think that actually, in the last 150 years, law schools have changed less than we might think and that the case method is still the dominant method and that that means that precedent rather than original meaning tends to be what’s focused on.
Hon. Jason Miyares: I think there is an enormous crisis in higher ed in general, but I also think, in law school, you have a suffocating level of political correctness and progressive orthodoxy that has a view of originalism as immoral, and therefore, they won’t teach it, or if they do teach it, they play lip service. And think of the utter shock for so many of these law school graduates that suddenly are encountering judges that have that as part of the expectations. And I think you have a real crisis right now. You have elite law schools, in particular, that are preaching diversity in everything but thought. There is simply almost virtually no ideological diversity whatsoever. And I think that is creating a real, real problem right now.
We have a robust intern program in the AG’s office, so we get students from both Ivy League schools and state schools in Virginia. And I will tell you the conversations that I’ve had with so many of those young students who are incredibly bright that are interning in our office -- the only word I would use to describe how they are seeing America, in general, is disdain, utter disdain. And they are really struggling right now with self-censure ship. The leave of fear that these students have on these campuses is palpable, and it is not conservative professors. And so, I -- it is one of the most troubling, long-term trends that I see right now for this country, in general, when over 50 percent of those ages 18 to 24 say, for example, that Hamas is justified in slaughtering innocent men, women, and children, and less than a third say they have a love of America. I don’t think that happened by chance, and I think, unfortunately, what you’re seeing in our undergrad campuses, I would multiple it even higher in so many of our elite schools. So I think they are not equipping students to come out properly trained in how to look at originalism because, like I said, they view originalism as immoral. And I think it is a real troubling long-term trend in higher ed right now.
Hon. Paul D. Clement: And just one thought on this. Look, I love legal historians as much as the next person, but I don’t think the solution to this problem is adding legal historians to law school faculties. And part of it is, I think, we’re -- by the time we start focusing on originalism and the work of legal historians — and again, I don’t mean to denigrate that; that’s -- there’s a reason that’s always been a discipline, even back in the ‘70s, when the Supreme Court didn’t give a fig about originalism — but it really is a little bit separate. And I think that the way that -- the best thing a historian could do is -- could unearth some new thing that nobody else knew was not part of the original public meaning, or a lot of what of legal historians spend their time doing is coming up with a revisionist history so everything we thought we knew about something gets turned on its head. And I would imagine there’s a few people in academia whose whole project in legal historian -- in legal history is really to defeat originalism and show that you can come up with a counter-history to everything. And that’s why I have to get back to the project, and I think Judge Ho had it exactly right when he said the project is text informed by history and tradition.
And so, I think we may be overmystifying originalism to the point where, oh, no mere lawyer can do this and you need a legal historian to do this. And if that’s the case, then I kind of think that either the Supreme Court took a wrong turn or we all took a wrong turn by going getting our Juris Doctors instead of our PhDs in history. But I don’t think either the Court or this group has taken a wrong turn. I think we just got to get back -- that, yes, history and tradition is important to inform the text. Part of the reason that Justice Scalia was on about this project was to constrain the discretion of judges and to give them clear targets to shoot at that are consistent with life tenure and judicial modesty. And part of the reason that you want to have more focus on text, history, and tradition is in lieu of an intermediate scrutiny rubric where any judge can come up with any result they possibly want.
So I just think it’s important to kind of demystify this a little bit, and the -- in a sense, the question is not, “Let’s get to the absolute best historical account of some incident,” but it’s really just -- it’s a little less daunting. It’s just, “Okay, there are these words. These words are our Constitution. They were ratified at a particular time.” If there’s a particular ambiguity, the history can help. If there is an unbroken tradition that goes back to the Framing and somebody’s telling you that, “That’s actually been unconstitutional since 1789, just nobody but me was smart enough to figure it out until now,” those are all things you should be skeptical about. But it's not that hard a project, and at the end of the day, it all gets back to the text anyways.
Hon. Elizabeth Wydra: And I think, just to follow up on what Paul said -- maybe I’m just agreeing with him because I only have a JD and not a PhD in history as well, but I think it’s also just what we’re teaching about the Constitution. What I do in my daily work is very focused on the Reconstruction Amendments, but I think so many folks, when they think about the Constitution or when they think about originalism, they think of the Constitution as it existed in the 18th century. And even law students, I think, do not have a -- to the extent they even get an education on the 18th century founding of the United States Constitution, they have even less of an education on what many have called the Second Founding that happened after the Civil War. And that doesn’t have to be ideological.
Honestly, teaching the Constitution should be something that is cross-ideologically embraced. You can critique it, of course. You can embrace it. But I think, certainly, knowing it is powerful as a lawyer, as an American. And I think that it’s also very interesting to look at the way in which the amended Constitution really writes across the face of our national charter our story of national progress in addition to constitutional progress. And so, I think including that in more law school constitutional law classes would be incredibly useful.
And then, of course, to second Paul’s point about it isn’t this mysterious PhD practice -- but I think it’s also interesting to students to see the ways in which you apply what can seem like distant history to very current debates. And I know when I speak with students about how a Fourteenth Amendment originalist argument relates to reproductive justice, they find that very interesting and, similarly, with other issues. So I would love to see more Constitution education on that front in law schools, and it wasn’t really there when I was at Yale, so Yale, call me.
Hon. Joan Larsen: All right. So I thought we might take some questions from the audience, if people have questions. I’ve now said, “Questions,” twice, and I’m going to say it again. It should be a question. That ends with a question mark. There are microphones. If you can make your way to the microphone, then we can hear you. And also, one more thing, tell us who you are.
Coach Weinhaus: Hi. Coach Weinhaus for Yeshiva University, or UCLA, and Abusive Discretion. The panel did an excellent job, exploring sources of methods of originalism, and Mr. Clement evoked judicial humility. And I’m curious how do we, as a society, identify judges who will be able to stay true to originalism and then, keep choosing, I guess, to limit their own power through other forms of discretion?
Hon. Joan Larsen: Well, I think the confirmation process is designed to do that. The appointment and confirmation process is designed to do that. I think that when presidents are selecting judges, they are certainly entitled to ask about methodology, not about approaches to particular questions but certainly about what the judges’ political -- not political philosophy -- judicial philosophy, not political leanings, are. So I think that’s the process we have in place for dealing with that question.
Hon. Jason Miyares: I would say this -- your question’s about -- where society’s impact on this. I think it’s going to be very, very difficult for, from a larger perspective of where society is -- I was reading a social scientist who’s talking about the decoupling of purpose in society, and he was not a conservative. He made this observation. I thought this was fascinating. He said, “We are the first society in human history, in all of human history, to reject the wisdom of those that have come before us.” It is a complete phenomenon in Western Europe and North America.
And if you go to Africa, if you go to Asia, if you go to Latin America, they have reverence for those that have come before and their wisdom. And it is only a recent phenomenon in the last several decades, the last 30 or 40 years, in which Western society has made the determination in a lot of, I would say, elite institutions that we’re going to simply reject those that have come before us because they have nothing to offer us. I think that permeates in almost everything that you see in a larger society, so I think that it is -- it’s -- our originalist judges, given what I’ve just described is having in academia -- I think it will get probably more difficult moving forward. Even though you have seen, I think, originalism become much more broadly accepted in a variety of legal circles, I also think it is also going to be more challenging.
Hon. Joan Larsen: All right. It’s hard to see over here, but we have a question -- oh, it’s Roger Pilon.
Roger Pilon: Yes. Yes, it is, from the Cato Institute. Thank you, Judge Larsen. My question is whether Judge Ho’s clerks may have been right when they asked whether even appellate judges should take their oath more seriously to the Constitution rather than to precedent. And I give you the important case of 1995, U.S. v. Lopez, where old Judge Harwood [sic], on the Fifth Circuit, entertained the argument from a young public defender in that case who had the effrontery to say that the Commerce Clause does not authorize Congress to enact the Gun-free School Zones Act. That power belongs to the state of Texas. But for the fact that Garwood said, “He’s right,” that case probably would not have made it to the Supreme Court. But in so doing, Harwood [sic], who, of course, was around in 1937, said, “Maybe the Court got it wrong on the Commerce Clause in 1937.”
Hon. James C. Ho: So if the idea is that Judge Garwood’s opinion in -- at the Fifth Circuit level in Lopez was a defiance of Supreme Court precedent, I’ll be candid. I’m interested in that. I’m going to go look at that. I was not aware that it was literally defying Supreme Court precedent. That’s inconsistent with all the cases we talked about in terms of Agostini and Rodriguez. The Supreme Court has told us repeatedly not to anticipate.
Roger Pilon: Well, professors had to rewrite their casebooks after the Supreme Court upheld Harwood [sic] --
Hon. James C. Ho: Well, sure, in the sense that the Commerce Clause had not been used to impose limits on federal power until Lopez and Morrison and what have you. But that’s different from saying that Lopez is literally irreconcilable with cases like Wickard, and if I recall, the Supreme Court itself reconciled those opinions. So like I said, I’m always open-minded, always open to being proven wrong. If there is an argument that Lopez was correctly decided as an originalist matter but completely insubordinate, from a Supreme Court precedent matter, that’s news to me, and I’m -- certainly would be interested in learning more about that.
Hon. Joan Larsen: All right. We’ll go over here to the left.
Hon. John Curry: Okay. Thank you. Judge John Curry from Chicago. Judge Ho, you pointed out that sometimes there’re somewhat politically motivated textualism arguments, and they may be rooted in some community or some political object. Clearly, in the progressive field, let me sort of sketch out what we see. The academy will generate some sort of progressive perspective, and that may mean changing language, using language in a different way. Then, the general media picks it up, and then, the politicians pick it up, so we have a new meaning, which is really rooted in the left or progressive point of view. And then, that’s used as a fulcrum for arguing a case, saying, well, this is what the text in this law or the Constitution says, and it really means this.
And I think the example you gave that, well, that could be shown to be originating in a community as opposed to really what the text is about, the original public meaning of the text. Wouldn’t you think it would be a good idea when this occurs to -- for a judge or an advocate in a brief to actually point out, “This is the root. They’re arguing this is what this means, but this is where it rose from. It started out at the University of California, Berkeley, and then, The New York Times picked it up, and then, certain political operatives have generated this. And that’s not truly the meaning that was in this statute.” I wonder if you think that approach would be useful. I think it would be useful to see that read so you get out the fact that this is not really an accepted public meaning but a politically motivated meaning.
Hon. James C. Ho: Yeah. I would just say I think I sort of noted earlier I think we all agree that we’re always interested in more information. I think your question, if I understand it, sort of reminds me of what Justice Thomas has often said, which is -- I forget him metaphor about adding cars to a train but then asking the question, “Are we even going in the right direction?” So certainly, let me just use this as an opportunity to kind of comment on what Elizabeth said earlier, which is — and I agree with it — which is originalism properly done isn’t conservative, isn’t liberal. It’s just lawyering. And if that’s the goal, I do take it -- I do take some solace -- we were talking about the selection process in the first question. We now have a consensus at least in terms of what people say, which is the judicial function is, in fact, an originalist function.
Swearing an oath to follow the Constitution means you will actually follow the written Constitution. At this point, I’m not aware of anybody who openly defies that. How good we are -- each and every one of us is actually doing that and doing it faithfully and following Justice Scalia’s principle that a bad judge was -- a judge who always likes the results of their decisions is a bad judge. I think that’s a pretty good principle to go by, but originalism properly done is steadfastly neither progressive, conservative, liberal, whatever terminology you want to use.
Hon. John Curry: Thank you.
Hon. Paul D. Clement: Yeah. And the only thing I’d add is just, again, getting back to, I guess, what is my theme, which is originalism isn’t something separate. It’s just one mode of trying to get the text right. And so, the principles that you’re talking about in terms of dealing with history aren’t really any different from the principles that I think you’re supposed to use when you’re interpreting statutory text, and you look at a bunch of dictionaries, and there’s one outlying dictionary, and you try to figure out, well, what’s going on with that one outlying dictionary. And Justice Scalia wrote an opinion for the Court in the MCI against AT&T case that’s had a second life as part of the major questions doctrine. But at the time, it was famous because it was the first time that Justice Scalia just ripped a new one into Webster’s Third.
But what generated that scorn for Webster’s Third is he was looking at a whole bunch of definitions of the word, “modify,” and then, he sees one that just is completely out of whack with the others. And then, he went back and realized that, okay, Webster’s, when it put out its third dictionary, decided to stop trying to figure out what words actually mean and just tried to essentially assemble widespread misuse of words and make that one of the definitions. And so, based on that, he threw out one definition of modify that didn’t fit in with any of the others.
And I think, when you’re looking at history, if at a certain point -- it seemed like everybody understood that a term meant a certain thing, historically, but then, all of a sudden, a revisionist school comes along -- you have to be cognizant of that but not because you have to be a great historian, just because you have to approach the job of interpreting the text the same basic way when it comes to historical sources as with respect to just the basic text and how you’d interpret a statute.
Hon. Joan Larsen: Okay. Sorry. The light is in my eyes, so I can’t really see you, but you can speak up and tell us who you are and what your question is.
Bryan Bishop (sp): Yeah. Hi. Right. I’m here. I’m Bryan Bishop from the Stephen Hopkins Center for Civil Rights in Rhode Island. And I’m wondering if you view dueling traditions, which perhaps are underappreciated in comparing the Roe and Dobbs decisions because people kind of go to the substance, and the penumbra is first. I’m wondering if dueling traditions are more a distraction from the originalist project or perhaps an invitation to broader subscription to the project.
Hon. Joan Larsen: I’m not sure I quite understand the question. Dueling --
Bryan Bishop: What I’m suggesting is that if we’re debating traditions and to an extent if that comes in in looking at our legal traditions, whether that might actually interest people who think that originalism has a conservative or a right-leaning valence. They might realize that tradition doesn’t necessarily always cut that way, that maybe we should play on the originalist field and try and tease these out. Or is that rather simply an excuse to overthrow originalism?
Hon. Elizabeth Wydra: So I think it’s a really interesting question, and certainly, part of what I do every day is try to convince my fellow progressives that we can and should play on the originalist field, and we can often win on that field as a substantive principled matter but also, frankly, as a strategic matter, given the makeup of the Supreme Court and many of our appellate courts across the country. One thing I think that -- you mentioned Roe and Dobbs and dueling traditions, and I think that that case and the Fourteenth Amendment cases generally are really interesting because the Fourteenth Amendment was — not to use tech bro slang — but was intended to be a constitutional disruptor. The folks who were writing the Fourteenth Amendment wrote it and thought it would be a constitutional disruptor to many different aspects of our constitutional order, that it -- they intended to turn on its head the relationship between state and federal citizenship. So instead of having state citizenship primary, they thought that this, especially with birthright citizenship provisions, etc., federal citizenship would become more important in many key ways. Similarly, disrupting a tradition of discrimination and opposition, the most obvious of which is with respect to the horrible institution of slavery, but they also considered other ways in which people had been suffering conditions of unfreedom.
The Thirteenth Amendment guaranteed freedom in the United States, and the Fourteenth Amendment, in many ways, answered the question, “What does it mean to be free?” And in doing so, the drafters of the Fourteenth Amendment intended to disrupt many discriminatory traditions. So when you’re going to engage in a text and history analysis of a Fourteenth Amendment provision, to me, it’s important to take into account that your traditions you look at might in way be different because the text was put into the Constitution in order to disrupt many of these traditions. So that’s something that I think is -- we talk about a lot, and I’d like to see more people talk about it. So thank you.
Prof. Bernadette Meyler: Yeah. I just want to add that I think that that’s true actually even of the original Constitution. You can look at the Suspension Clause and wonder how much of it is about enshrining what came before and how about deviating from that. But I think the other point I would make is that it’s not, say, just going to Roe and Dobbs but even going back to what Judge Larsen mentioned before, the Crawford case. I think a lot of the Sixth Amendment originalism decisions have been embraced by progressives as well as some conservatives. And so, there are plenty of ways to, I think, use originalism in different political valences or for different political ends as well.
Hon. Britt Grant: If you look at, for instance, the Heller decision, both opinions in that case were deeply originalist, and one, of course, got more votes than the other. But I think that’s a really good example of “both sides of a question” digging into the original sources and trying to use those to discern the meaning.
Hon. Joan Larsen: All right. We’ll take a question over here on my left.
Art Macomber: Thank you. Art Macomber, Coeur d’Alene, Idaho. My question is really for the judges, and I’m wondering about the analytical framework. I think Mr. Clement said, okay, so you state with the text, and then, you have history and tradition. So the final two are kind of a swamp, and I see that, for the Founders, they were looking backwards. And I think if you don’t start with Magna Carta and move forward, you don’t really get an understanding of how -- we look backwards and see the Constitution. They were setting it up and looking forwards, given what happened in the past.
And my question is this I know you have subject-matter considerations, the First Amendment obviously different than the Third Amendment. Right? History and tradition on the Third Amendment is pretty well capped. But how do you, as a judge, approach this issue? What is the analytical framework for the history and tradition swamp that you engage in — step one, step two, step three? And if you could talk a little bit about that, it would be very helpful. Thank you.
Hon. Britt Grant: I think it’s interesting, again, as a circuit judge, certainly, we have occasions to look at history and tradition, but again, I think, less so than the Supreme Court. So I think, for me, sometimes it comes up in what we might think of as smaller issues. I mentioned that a little bit before, issues that are not on the front pages of the newspaper. And I think that’s where you can look back and see earlier statutes. How did -- maybe even if you’re looking at habeas corpus, right, Magna Carta, and how did it go from there? What was the original understanding of habeas corpus at the Founding? How did that impact its development as we went through the 19th and 20th centuries?
Even those questions, I think, can sometimes inform, say, an EDPA issue that we’re dealing with today. And so, I think, that’s not an issue where you’ll necessarily have a brief that starts with Magna Carta, but I think, once you start to dig into the text and look at things that happen with statutes and try to understand what framework, even 20 and 30 years ago, people were working within. I think that you try to look at those questions at every step of the line. So to me, originalism doesn’t start and stop around the Founding era. It’s a developing process. When you look at the developing understandings as we have statutes that have gone through their own processes and their own development, I think it really help you understand, as a judge, what that text means when you look at the text that came before it and the practices that came before it.
Hon. James C. Ho: I might just lightly try to merge the premise of your question with what Elizabeth said earlier. What I said earlier was I think there was at least some sense that one way to approach this is text. That’s what we’re doing. But it can be, can be, informed by history and tradition. But as Elizabeth points out, there are times when the drafters, whether it’s a constitutional amendment or a statute or what have you, there are times when the text is pathbreaking, right, when the whole point of a text is to go in a very different direction.
Now, obviously, you need to figure out when those situations exist and when they don’t, and we have certain kinds of interpretation. The one against lightly assuming variations of common law would be one example where we don’t assume a pathbreaking moment, but when the text does break a path, suggest a complete departure from the past, then, history, tradition obviously, presumably, could play a different role in that situation. So it’s just a matter of figuring out which situation you’re presented with.
Hon. Joan Larsen: All right.
Will Trachman: Hi. Will Trachman from Mountain States Legal Foundation.
Hon. Joan Larsen: Yeah.
Will Trachman: We don’t write on a clean slate very much, not all of us are practicing before the Supreme Court. Is there an opinion on whether litigators can use originalism when there’s already a balancing test or a tier of scrutiny at play? So to say, well, this is not a compelling interest that would have been compelling to the Framers or in the original public meaning, or this wouldn’t have been narrowly tailored to the Framers. And separately, we have a case right now, representing a student who was prohibited from wearing the Gadsden flag as a patch on his backpack, and we’re arguing under the Tinker standard. So could we say, “Well, obviously, it wouldn’t have been a substantial disruption in the 1860s to wear a Gadsden flag on your backpack?” How does originalism interact with current balancing standards?
Hon. Joan Larsen: Yeah. That’s a great question. First of all, I don’t think you’re going to get any of the judges on this panel to opine on your case. So we’re not going to do that. But I think, as a general matter -- look, if the Supreme Court has said, “Here’s a balancing test, and you have to apply the balancing test,” the judges, for the most part, are going to apply the balancing test. And if there are cases in the circuit or coming from the Supreme Court that cash out what that balancing test looks like, I think the judges are going to be inclined to say, “Well, this is how we’ve applied this before. The cases tell us that this factor on this factor. We look at these things, and your case looks exactly like that one or looks different than that one.” I think that’s what most judges are going to do as a first line.
That being said, if you can make a compelling case either that there’s an alternative to the balancing test that we ought to be taking very seriously, I don’t think any of us are going to not apply the balancing test we were told to apply. But it might provoke that concurrence that says, “Hey, you should replace that with something else.” And also, I think it’s an interesting proposition to say, “We should think about how this would have balanced out at the Founding.” If you’ve got that case that you can make, I think I share Judge Ho’s perspective. Bring us the information, and we’ll see how it cashes out. Again, I don’t know about your particular case so not commenting.
Hon. James C. Ho: Yeah. Look, if you think you have an originalist argument, I would make it. Absolutely. I’m reminded of what Justice Scalia often said. Justice Scalia famously was pretty categorical, if not actually categorical, about legislative history, and yet, he would repeatedly tell lawyer audiences, “If you have a legislative history argument, you absolutely should make it.” He may not take it. He may not agree with it. But some of his colleagues might. Some of the judges on other courts might.
And so, I would view things from a practitioner’s standpoint in that lens. If you have -- presumably, you think you have precedent on your side. You should cite the precedent. But I would always be prepared -- if nothing else, at oral argument, we also train, whether it’s me or me mooting other people in my office, have a backup argument. Have multiple arguments. You should win based on a precedent. You should win based on originalist analysis. You should win based on, frankly, policy arguments because some judges may pay attention to that.
Just frankly, to me — and this maybe goes back to the General’s comment about the state of legal education — is -- it just strikes me as woefully incompetent, educational malpractice, for law schools not to teach every tool in the tool book, if, in fact, your avowed object is to train legal professionals. The problem—I think General is absolute right—is law schools aren’t doing that anymore, at least not -- maybe not -- categorical, many law schools -- certain law schools may be focused more on indoctrinating and sort of just wanting to inflict a certain sense of political change rather than doing what I thought they were doing, which is training future lawyers. And so, future -- lawyers of all kinds, including future lawyers, need to have every tool in the toolbox so that you can deploy for your clients. I would have thought that that would be uncontroversial, but apparently, that’s the controversy of the day.
Hon. Britt Grant: I’ll say I think you should absolutely make originalist arguments, if you have them. And not only might it inspire concurrence, but it could inspire an “and also” in a majority opinion. There’s important scholarship from, say, Professor McConnell on how Brown v. Board wasn’t written as an originalist decision, but it certainly is very consistent with the original meaning. And so, I think all judges want to make their opinions as persuasive and rock solid as possible. And if there’re originalist arguments that point in the same direction, especially as whatever the result is of the balancing test that we’ve been instructed to use, then I think a lot of judges would be really excited to include those arguments in their opinions to fully bolster the decision.
Hon. Joan Larsen: Professor Meyler.
Prof. Bernadette Meyler: Yeah. I think this is a very interesting question because a lot of recent Supreme Court cases have kind of called into question some of the tiers of scrutiny or other tests that have traditionally been applied since, say, the 1940s. And so, I think, one strategy might be to say, “Well, in Bruen, there seems to be a rejection of those kinds of tests, so maybe there’s some uncertainty about whether the Supreme Court is actually endorsing tests along these lines in other cases.” But then, also, I think there’s a counterargument about to -- maybe to the Supreme Court about rejecting these kinds of tests because I think, as Judge Ho had mentioned, there may be some evidence of the Founding about some forms of balancing. Right? If you think about Justice Marshall using a question about is it necessary or absolutely necessary -- what is the level of review.
And then, secondly, there is a question about how much originalism really also imports a particular method of judging. Does it include judicial practices from the Founding or not? And then, I think, third, there’s also a practical question about implementing doctrine in the lower courts, whether tests of -- balancing tests or other things are just more feasible for lower courts to implement as a routine matter. So I think there are some interesting arguments on either side.
Hon. Joan Larsen: All right. Let’s move here to the -- my left.
Violet Grayson: To what degree -- I’m Violet Grayson. I’m a practicing lawyer. And to what degree do you experience tension between originalism and textualism?
Hon. Joan Larsen: I’m sorry. There was just noise in the hallway. I couldn’t quite hear it.
Violet Grayson: I said, “To what degree do you experience tension between originalism and textualism?”
Hon. Joan Larsen: Oh.
Hon. James C. Ho: I’ll just take a quick stab.
Hon. Joan Larsen: Yeah. Go ahead.
Hon. James C. Ho: I’ve never seen any tension between the two concepts. Obviously, they’re two different words that are used. Typically, textualism is associated with statutes. Originalism is associated with the Constitution. But I don’t see them in tension. The way I have always thought about it, and this could be completely wrong, but just how I think about it is we talk textualism when it comes to statutes because statutes typically -- just read the text, and you can kind of figure out there are more words. There’s more detail. And so, you can kind of begin and end with text.
Whereas, constitutions, and certainly the federal Constitution, there are times when you have few words, and you need more to decide a particular dispute that’s in front of you. And so, you look behind the text to figure out, well, what do we mean. What did the Founders mean when they drafted these terms? But to me, it’s the same conversation we’ve been having earlier. We’re looking at text. If you need more than the text, you might need to be informed by things behind the text: history, tradition, dictionaries, what have you. But I think it’s all the same project. At least, that’s how I’ve always conceived of it.
Hon. Jason Miyares: Yeah. I would -- kind of a different perspective. Prior to my service as Attorney General, I served in the General Assembly in the Courts of Justice Committee, and we used to always say, “We don’t vote on ideas. We vote on bills.” And it was all -- exactly to Judge Ho’s point, looking at how we were going to be changing the code, and the one thing we always stressed was there was going to be a judge, whether they’re in Fairfax or Galax, that is going to be trying to interpret how we have amended and changed the code of Virginia. And they are likely not going to have the benefit of watching what the meaning or the intent or the testimony of the patron of the legislation that’s seeking to change whatever section it is, 18.2, whatever section of the Virginia code. So I thought it was -- we always had the attitude that it was so critically important to make sure the text, the actual language -- and we argued over single dot and comma, as lawyers often do, precisely because we had the idea that a judge is going to have to read the plain language, and it needs to be crystal clear. And oftentimes, bad bills make bad law and then bad precedent.
Hon. Elizabeth Wydra: And I would just add I think that’s a really interesting question because the idea with textualism is that you’re sticking to the text. Now, of course, sometimes, the text is -- needs greater context, or you can understand it better if you look to these other sources. And I normally think that that’s a great idea. One of the places where I do feel like there’s tension, however, sometimes, is when, through the originalist project, you’re using history or tradition to subvert the text or to make the words mean something perhaps other than you might think they mean based on the plain text of the constitutional provision, for example. And so, when that happens, I’m not saying it’s always wrong, but it certainly makes me pay a little bit more attention to what is actually happening in that instance. I think of this particularly with respect to the Fourteenth Amendment.
Hon. Joan Larsen: All right.
Aaron Watt: Good morning. Thank you to all the panelists for being here. My name’s Aaron Watt. I’m a 3L at Scalia Law School. I have a question about the originalist project. Someone else asked about sort of the order of operations, about starting with text. And I think back on my federal courts class about sovereign immunity. I think it’s a good example of something where it seems like we start from history and tradition, and we say we really didn’t mean to derogate from that.
I wonder if there are other places where it’s appropriate to start from the opposite direction as well. Are there rights that were so taken for granted up through English common law into the United States that it would be more appropriate to look to see what the foundational rights and to see if the law has derogated that? What are your thoughts?
Hon. Joan Larsen: Is that a question about common good constitutionalism?
Aaron Watt: I don’t think it is. Actually, I don’t support that perspective. But just from an originalist perspective, if what the people thought they were doing was incorporating rights, privileges, or immunities or whatever it was that they had taken for granted that existed, if that’s what the original Founders thought they were doing, is it appropriate to start from that place when evaluating just particular rights at least?
Hon. Joan Larsen: So maybe that’s a question about the Ninth Amendment. Maybe I’m not understanding the question. If we could take a particular constitutional provision, so the Confrontation Clause or the right to jury, as an example, so if we took the right to jury, how does that -- how does your question cash out there? Or are you asking, “Are there rights that the Founding generation would have understood to be a part of the set of natural rights,” for example, that they wanted -- that when they talked about the other rights retained by the people, that’s what they meant to enshrine? Those seem like two different questions, and I’m not quite sure which question you’re asking.
Aaron Watt: Sure. And it’s hard for me to come up with a starting point in the text because, of course, then, I would have started from the text. This is part of why I wanted to --
Hon. Joan Larsen: And you didn’t -- the whole premise of your question is not to start with the text. Yeah.
Aaron Watt: And it’s at least why I bring up sovereign immunity as an example. And so, I think about things like parental rights. Is that something that would have been taken for granted as a right? Where does that right originate from if it doesn’t originate from the text? And so, maybe my question isn’t clear enough quite to respond to, but I wanted to give you what I’ve got on it anyway.
Hon. James C. Ho: I’m going to go with the fact that you’ve sort of hit sovereignty immunity twice, and I’m going to take that to be the premise of your question. And I just lightly disagree or at least offer a different take on your premise, which is to the extent you’re saying — and this is going to get nerdy really quickly — to the extent that your point is the Eleventh Amendment obviously talks about sovereign immunity in some ways but not in the broader way that we have in various settings -- diversity, which is a federal question, etc., etc. I don’t see that as anti-textual. I see that as the Eleventh Amendment reflecting drafters thinking that the Supreme Court got cases wrong. I think it’s Chisholm -- or I forget this area, now. It’s been a while since Fed Courts for me.
But it’s really not the text that’s doing the work, at least the text of the Eleventh Amendment. It’s the text of Article III, and the drafters, rightly or wrongly, thought, “You know what? Supreme Court, you got it wrong, so we’re going to lightly -- we’re going to overturn your case through the text of the Eleventh Amendment, but obviously, we’re restoring a broader conception of state sovereign immunity that we thought was already in Article III or perhaps the Tenth Amendment.” I think multiple Supreme Court justices have said it’s wrong to use the term, “Eleventh Amendment immunity,” other than in those cases where it’s actually about the Eleventh Amendment. It’s state sovereign immunity that preexists the Constitution and wasn’t overturned by Article III. So I might disagree with your premise and, therefore, stick with the text.
Hon. Elizabeth Wydra: I think it’s hard to think of a time when you wouldn’t at least start with the text. Privileges or immunities, for example, in the Fourteenth Amendment, is a broad term, but if you look at the original public meaning, there was a very clear understanding -- at least, the general concepts that were included. Now, whether it’s the Corfield v. Coryell list of rights, whether it was the first ten amendments plus -- you look at the debates, and you can see that the -- you mentioned parental rights -- that the right to form a family was included in those ideas of privileges or immunities. So I think it would always be right to start with the text because there’s a reason why they used privileges or immunities as opposed to some other term of relating to rights or liberties.
Prof. Bernadette Meyler: I think it’s an interesting question because even if you look at Article III, there isn’t an explicit provision for state sovereign immunity in Article III. Right? So you’re implying something into the text, and I think that I would go back to Judge Larsen’s comment about the Ninth Amendment, or even the Tenth Amendment, that there are these provisions of the Constitution that are fairly broadly phrased and that do imply invocation of some forms of structure or rights that were preceding the Constitution. And so, figuring out which provisions are against that backdrop and which aren’t is one of the, I think, tasks of interpretation, even if you’re starting with the text.
Hon. Joan Larsen: All right. We have time for just a couple more questions, so let’s take one over here on the left.
Clarke Forsythe: Clarke Forsythe, Americans United for Life. If the focus of originalism is the ratified text, which, if any, outside voices are relevant to the ratified text?
Hon. Britt Grant: I think it depends on what you’re using them for. I’ll be interested to hear from our scholars to my left, but I think voices are not -- I don’t think that any voices are appropriately used to override the text. But to the extent that we can use different voices to better understand the text, then I think a lot of the comments from, really, all the panelists today have indicated that we can take those into account. I think Paul Clement had a lot of arguments about whether we should allow private voices to override public understandings, and I think that those questions are interesting. But I think, as long as we’re using them for the right reasons and placing them in the proper context, I think you can certainly consider and then put within the overall framework -- we’re happy to hear, I think, about a lot of voices and then give them whatever meaning they have, in terms of helping us understand the text, but not override the text.
Prof. Bernadette Meyler: Yeah. I would say that, in my view, looking at the participants and debates, right, so a lot of these kinds of rights or provisions were subject of different debates or might have been subject to different laws in different colonies. So looking at the structure of those debates, I think, is particularly informative in understanding what the text means.
Hon. Elizabeth Wydra: Yeah. When you’re looking at an original public meaning analysis, which is the dominant form of originalist analysis after you look at the text, then, of course, you are going to include voices other than just those who were the ratifiers because they are included in the public. But yes, obviously, it implies some level of publicity. So Paul’s private diary, I don’t think, would count unless excerpts of that diary were published à la Federalist Papers and distributed to the public. But we look at newspapers. We look at convention debates. And certainly, when I think about my particular area of expertise in the Reconstruction Amendments, there were a lot of these public conventions and debates. And so, there is really a rich history to be looked at there. And I think that as we get even more scholarship and have more sources, public sources, then that will be a really interesting rich debate.
Hon. Joan Larsen: Okay. We are very close to being out of time, but there are only two speakers at the mic, and I just -- I have such a benevolent heart. So I can’t just cut one of you off, so it’s the lightning round, quick question, and we’ll give you each a quick answer. And then, we’ll adjourn.
Gabrielle: Well, thank you. I really appreciate the love and benevolence. My name is Gabrielle. I’m a third-year law student from University of Miami. And all I wanted to ask touches upon what Miyares has said about the hatred of originalism in law school, and he’s absolutely right. And I ask this question because I think it extends from this very formulaic argument that they produce that because the Founders were wrong — at least in so far as who was afforded certain substantive rights — or that history was wrong for a period of time, that they must be wrong about the actual interpretation or meaning or scope of the actual substantive rights themselves, so we should just do away with anything they thought of entirely.
And of course, that ignores the beautiful design of our Founding document that, when we do extend rights to all human beings, we don’t have to do away with the whole document, and we have the most successful governance experiment of all time. So my question is how do we respond to this vitriol from the other side? Just because we have historical mistakes, it doesn’t mean that we should dispose of this.
Hon. Jason Miyares: Well, this is what I would say. This idea that the greatest critique of originalism is we got to ignore the dead hand of the past, and as I had one intern tell me that the general sentiment from some of their law professors is why would we want to study dead white men? And I think it takes away the richness of the basic of the Founding where if you look at James Madison, he was obsessed with two things: both anarchy and monarchy. And so, how do we frame a government in such a way that can respect both the rights of the individual and the face and the passions of the mob but also make sure that part -- that power is devolved. And I think the other thing it takes away, which I think law students often are not taught, is just how obsessed Madison was going to the Constitution Convention on why democracy fails. He spent so much time looking at both Ancient Greece and Ancient Rome on what caused them to fall, not just forming the government. How do we create a system of governing that absolutely can self-perpetuate itself? And I thought that is greatly missing.
And it is the first written constitution in all of human history that actually limits what government can do and empowers the individual. It’s never happened in all of recorded history. And the other thing that makes me is a sense that we got to ignore a dead white man, and it’s not quite applicable, but my -- people ask me, “What kind of name is Miyares?” I say, “Well, it’s southern.” My family fled Cuba, and my uncle, Angel Miyares, when he was arrested in Cuba and he went through the humiliation of a mock execution, one of the things that he appealed to was, “You have no right to do this because I have certain unalienable rights of life and liberty.” In other words, he was appealing towards something that was a university principle laid, of course, by our Founders. Obviously, the Declaration of Independence is kind of the birth certificate later on for the Bills of Rights. So I think it is a passionate need to expose the fact that these university principles that have been appealed to to man’s better nature in every gulag, whether they’re in North Korea or Cuba or in Russia, and the universality of it that applies to all races and creeds.
And the point that I make is -- and when Dr. King made his speech at the Lincoln Memorial, he didn’t appeal to Rousseau. Right? He said he was there to collect a promissory note made to every single American — past, present, and future — of life, liberty, and the pursuit of happiness. He didn’t appeal to Confucius. He didn’t appeal to Rousseau. And if you look at simply -- when Dr. King taught at Morehouse College, do you know what he taught? Philosophy. Do you know what he assigned to his students? The greatest thinkers of Western Civilization. Look at the curriculum that Dr. King picked out and taught in his philosophy class at Morehouse College, and I think you should point to that, that there is a universal principle here that is oftentimes ignored and to tragic consequences on our college campuses, tragic consequences.
Gabrielle: Thank you.
Hon. Joan Larsen: Okay. So I hope you have a good one to take us out on.
Connor: To quickly piggyback off of that question as well, my name’s Connor. I’m the President of the Student Chapter at William and Mary Law. What can students and young attorneys do to help circumvent that censorship on college campuses and in hiring practices? Many of us feel as if we have to choose between self-censorship and professional and even social suicide. So what can we do to bring in the next generation of originalist thinkers because I think a lot of us believe that we’re being -- we’re losing that platform. We exist, but the platform itself is shrinking and disappearing.
Hon. Jason Miyares: I would just say real quick. Alumni should withhold their donations to their alma mater until they commit to ideological diversity, number one. [Applause] And I think -- and I do think that their -- and I’m a proud alumni of that same Federalist Society chapter at William and Mary. C.S. Lewis has a great line where he says, “The beginning of friendship is when you turn to somebody and say, ‘Oh, you too?’ I thought I was the only one.” Right? So I think there is both a power of the organizations like Federalist Society and others for people that have this originalist worldview to realize they’re not alone. And I think that’s critically important as well is to build up, continuing these different organizations that can foster and encourage the next generation.
Hon. Britt Grant: I’ll say this: have debates in The Federalist Society. That’s, I think, one of the most fundamental principles of The Federalist Society is that there are important issues. Let’s hear both sides of them. If you’re not getting the originalist side at -- from the academics at your law school, have a debate. Invite people in. Let students hear. And I think more students will be persuaded, and they can feel like they can sneak in if they think the right side is also being represented. And maybe they’ll hear a different view and start to think about it more carefully.
Hon. Joan Larsen: Okay. We are a little bit overtime, but I have to read you some things that I was told I must read. So I’m going to do it, and then, you can thank our terrific panel. So if you are pursuing CLE, we’d like to remind you to make sure you sign in and sign out once per day. If you did not sign in ahead of this panel, please do so now via the QR code in the program and also available at registration. Additionally, we would like to remind you of the Remnant Trust’s Rare Documents Exhibit located on the second floor in the South Carolina Room. You can access the second floor using the elevators located next to check-in. If you are ever need -- in need of coffee or a power strip to charge your phone or your laptop or your iPad, I suppose, throughout the day, these are located at the Mezzanine Level, accessible by the front elevators. There are no panels directly following this one, so we’d like to announce that lunch will be served shortly in the main hallway. Thank you very much. We are adjourned.