Full Transcript - What The Hell Is Progressive Originalism?
Full Transcript - What The Hell Is Progressive Originalism?
Watch Episode #61 - What The Hell Is Progressive Originalism?
Today on Legalese we will be talking about the judicial philosophy called Progressive Originalism, as well as discussing the junior associate Justice of the Supreme Court, Ketanji Brown Jackson who is the Court’s first progressive originalist and I will be talking about why I think she may be in a unique position to become one of the most influential Justices on the Court...
Introduction
Welcome back to legalese, today we will be discussing the judicial philosophy of progressive originalism. And why the Court’s first progressive originalist Ketanji Brown Jackson has the potential to be the most influential member of the Court and why that’s maybe not a bad thing. But first lets discuss what progressive originalism is.
The first thing to note is that, progressive originalism is not some kind of contradiction as many originalists and conservatives think and originalism is not a strictly conservative judicial philosophy as many progressives and living constitutionalists think.
Now, I make no secret of the fact that I ascribe to the Original understanding method of interpretation. So of course I disagree with aspects of progressive originalism, but I make that clear so we can consciously set it aside for now, because, to begin, I want to provide an objective and scholarly analysis of progressive originalism to let you fairly make up your own mind on the value of this judicial philosophy. Just as I have done in my past videos on Originalism and Textualism that is actually one of my most popular videos and would be worth checking out if you haven’t seen it.
What Is Progressive Originalism
Before we can define progressive originalism we need a quick refresher on originalism in general. All modalities of Originalism do share several fundamental features. This holds equally true for original intent, original public meaning, original understanding, progressive originalism and textualism as well. That is they are derived from both a descriptive and normative theory of interpretation known as legal formalism. In its descriptive sense, formalists believe that judges reach their decisions by applying uncontroversial principles to the facts. As a normative theory, formalism is the view that judges should decide cases by the application of uncontroversial principles to the facts.
For Originalists and textualists these are manifested in two doctrines known as the fixation thesis and the constraint principle.
What they refer to is that the meaning of the text in a legal document is fixed at the time it is drafted and that any interpretation of that document should be constrained by that fixed meaning.
Perhaps the primary thought leader in progressive originalism is the progressive legal think tank The Constitutional Accountability Center (the CAC) they have launched an internal project called Originalism Watch where they distinguish progressive originalism from what they call “conservative originalism” (by which they mean Original Public Meaning, though for brevity’s sake I will simply be using CAC’s somewhat inaccurate terminology of “conservative originalism” in this video.
Progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three reconstruction amendments ratified after the Civil War.[1]
They are specifically referring to the thirteenth, fourteenth and fifteenth amendments.
Akhil Reed Amar, a Yale law professor and notable progressive originalist, has said:
Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative… By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy powerful new arguments to cement precedents under threat from the right and undergird the recognition of new rights.” [2]
Ketanji Brown Jackson has confirmed this notion that they are using what Amar refers to as “conservative methods”, by which he means Originalist methods. In her Supreme Court nomination hearings (then) Judge Jackson held
"[She] does not believe there is a living Constitution." And recognized that “the meaning of words in a legal instrument such as the Constitution have a fixed meaning and that a judge should be constrained by that fixed meaning when interpreting the law.”
[Quote Paraphrased From Confirmation Hearing On March 21, 2022]
In fact, here she is reiterating that very point in an earlier hearing On April 28, 2021, before the Senate Judiciary Committee for her confirmation to the prestigious U.S. Court of Appeals for the District of Columbia Circuit. Often called the second highest court in the land.
Her statement is a clear confirmation that her interpretation indeed employs the fixation thesis and the constraint principle.
Progressive originalists are, in the most fundamental sense, originalists. Like Akhil Amar, other Progressive Originalists such as Lawrence Solum, Jack Balkin, Bruce Ackerman and Elizabeth Wydra all contend that where they differ is in their belief that when it’s done correctly, originalism points more often than not to progressive—not conservative—outcomes. Their distinction between schools of Originalism is a distinction of degrees and not kinds.
Elizabeth Wydra of the CAC has elaborated, saying::
America’s Constitution is, in its most vital respects, a progressive document, written by revolutionaries and amended by We the People who prevailed in the most tumultuous social upheavals of our Nation’s history. The Reconstruction Republicans after the Civil War (our nation’s Second Founding), the Progressives and the suffragists in the early 20th century, and the civil rights and student movements in the 1950s and 1960s all successfully amended our Constitution to extend its rights and protections to more Americans[3].
The reality is that originalism which we can loosely define as looking to the actual text of the Constitution and the meaning of those words in the text, at the time they were ratified in order to help us resolve constitutional disputes, that’s not an inherently conservative method…
…and she is not wrong. Turning to the text is not an inherently “conservative” method.
Wydra continues that:
What we do when we talk about looking to the original, meaning of the Constitution, is we start absolutely with the words and the fact is people wrote the Constitution and people ratified the Constitution to in most cases set forth general principles which were broad enough to be applied throughout the ark of our country’s history…
Privileges or Immunities Clause
This can be best demonstrated by looking at those places where so-called conservative originalism and progressive originalism reach precisely the same conclusion. For me, the quintessential example of this comes from Originalist interpretations of the Privileges or Immunities Clause of the fourteenth amendment.
The heart of this issue comes from several events that take place just a couple years after the 14th amendment was ratified. The privileges or immunities clause was determined by the Supreme Court to be an effectively meaningless clause, in two landmarks of fourteenth amendment jurisprudence. Slaughterhouse and Cruikshank. All Originalists recognize an intrinsic value to overturning Slaughterhouse and Cruikshank, which would allow us to return to the original meaning of the privileges or immunities clause, and that many of the fundamental rights that are currently incorporated under the fourteenth amendment’s due process clause would be better and more accurately protected under the privileges or immunities clause. Which both groups see as a clause whose purpose was to protect fundamental enumerated and unenumerated rights.
I have made entire videos (plural) arguing this very point, such as “The Originalist Privileges or Immunities Clause” As well as giving this topic a significant amount of attention in other videos of mine about other topics that have a fourteenth amendment jurisprudential hook. Most notably many of my second amendment videos discuss this.
And that is where I believe this gets really interesting. Because the most prominent example of this agreement by all camps of originalists has to do with the fundamental rights to own arms for self-defense. This, despite the fact there is no consensus among progressive originalists that the second amendment confers an individual right to keep arms for self-defense. Some reject a 2A individual right, others merely write it off as unimportant (remember, they are originalists whose major focus are the reconstruction amendments)… But there is a consensus among progressive originalists that the individual right As elaborated In Heller is incorrect.
The primary holding in Heller is:
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.[4]
Yet, somehow, progressive originalists reach a strong consensus on the assertion the individual right to own guns, including for lawful self-defense IS protected by the fourteenth amendment… How can that be? I hear you asking me, and that is a great question. After all, the controlling precedent on this issue from McDonald v Chicago says that the fourteenth amendment’s individual right comes from selective incorporation of the second amendment as against the states by way of the due process clause (a.k.a. substantive due process)…How does, what is to them, a militia right become an individual self-defense right?
It doesn’t. And this is why the living constitutionalists on the Court in McDonald concluded the fourteenth does not protect an individual right for lawful purposes such as self-defense—because to them, the second amendment doesn’t provide an individual right for self-defense.
Progressive Originalists instead recognize self-defense and gun ownership each as fundamental individual rights protected by the fourteenth amendment through the original meaning of the privileges or immunities clause. I’ve made this same argument before, but from an original public meaning perspective, so today I’m going to mix it up by reaching that very same conclusion relying solely on the scholarship of notable Progressive Originalist scholar Akhil Amar.
After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freedman, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.”[5]
Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves Union Army commanders took steps to secure the right of all citizens to keep and bear arms, but the 39th Congress concluded that legislative action was necessary. Its efforts to safeguard the right to keep and bear arms demonstrate that the right was still recognized to be fundamental.
The most explicit evidence of Congress’ aim appears in §14 of the Freedmen’s Bureau Act of 1866, which provided that “the right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery.” 14 Stat. 176–177). Section 14 thus explicitly guaranteed that “all the citizens,” black and white, would have “the constitutional right to bear arms.”
Representative [John] Bingham believed that the Civil Rights Act protected the same rights as enumerated in the Freedmen’s Bureau bill, which of course explicitly mentioned the right to keep and bear arms. 39th Cong. Globe 1292. The unavoidable conclusion is that the Civil Rights Act, like the Freedmen’s Bureau Act, aimed to protect “the constitutional right to bear arms” and not simply to prohibit discrimination. See also Amar, Bill of Rights 264–265 (noting that one of the “core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances” of freedmen who had been stripped of their arms and to “affirm the full and equal right of every citizen to self-defense”).
Congress, however, ultimately deemed these legislative remedies insufficient. Southern resistance, Presidential vetoes, and this Court’s pre-Civil-War precedent persuaded Congress that a constitutional amendment was necessary to provide full protection for the rights of blacks. Today, it is generally accepted that the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866[6] In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection.
“Every man … should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”[7]
Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.” “The fourteenth amendment, now so happily adopted, settles the whole question.” Cong. Globe, 40th Cong., 2d Sess., 1967.
Here is where things, for me, get even more interesting. Because following the Court’s opinion in Heller that recognized the right to keep and bear arms was an individual right, for lawful purposes such as self-defense and not constrained by active service in a militia we saw an onslaught of cert petitions going to the supreme court, seeking review of cases that would incorporate the Heller precedent as against the States through the fourteenth amendment.
McDonald v Chicago was the only petition I could identify that sought review on incorporation through either substantive due process OR by incorporating the right as fundamental according to the privileges or immunities clause. For whatever reason, the Court would grant cert on McDonald, whose question presented read as follows:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.1
This was remarkable because the petitioner, Otis McDonald and his attorney Alan Gura were asking the Court to overturn more than 130 years of precedent established in the Slaughterhouse Cases, 83 U.S. 36 (1872) which held:
The Privileges or Immunities Clause of the Fourteenth Amendment is limited to federal citizenship rather than extending to state citizenship.
As well as United States v. Cruikshank, 92 U.S. 542 (1875), which held:
The right to keep and bear arms exists separately from the Constitution and is not solely based on the Second Amendment, which exists to prevent Congress from infringing the right.
Unsurprisingly, the Court chose to decline the petitioners invitation to kick over that jurisprudential hornet’s nest. With only Clarence Thomas demonstrating the courage and principles to brilliantly argue for the propriety of actually taking up that invitation to overturn those two cases, so repugnant to the original meaning of the fourteenth amendment.
In the McDonald case its still surprising to see the volume of amicus briefs filed in that case in support of the petitioner, as well as the ideological diversity of the many amici behind the various briefs. Including one amicus brief filed as: Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioner. This brief was drafted by none other than Elizabeth Wydra and Douglas Kendall the Progressive Originalists who founded the Constitutional Accountability Center. Among the Constitutional Law Scholars who signed on as amici in support of this brief were other notable Progressive Originalists including Akhil Amar, Jack Balkin & Michael Lawrence. As well as Randy Barnett and Steven Calabresi, two of our country’s foremost Original Public Meaning Originalists. I’ll link to this brief on the show notes page and I encourage everyone to go read it in its entirety, but the summary of their argument reads as follows:
…The textually and historically accurate way to determine if the states must respect an individual right to keep and bear arms is to examine the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.
Amici submit to the Court that the original meaning of the Privileges or Immunities Clause protected substantive, fundamental rights against state infringement, including the constitutional right of an individual to keep and bear arms. Indeed, the framers of this Clause specifically desired to protect the right to bear arms so that newly freed slaves and unionists would have the means to protect themselves, their families and their property against well-armed former rebels and chose language whose meaning would accomplish this end…
…Reviving the Privileges or Immunities Clause and limiting Slaughter-House and its progeny would bring this Court’s jurisprudence in line with constitutional text and a near-unanimous scholarly consensus on the history and meaning of the Clause. Slaughter-House read the Privileges or Immunities Clause so narrowly as to essentially read it out of the Amendment, but “[v]irtually no serious modern scholar—left, right, and center— thinks that this is a plausible reading of the Amendment.”[8]
Ketanji Brown Jackson
At this point I want to shift focus onto talking about Ketanji Brown Jackson and I have what I imagine may well be a controversial suggestion That is that perhaps Constitutional Originalists should welcome her presence on the Court. But hear me out. Because I contend, if you are a truly principled originalist you should see Ketanji Brown Jackson’s seat on the Court as a good thing. Not a great thing… but a good thing. Because the important difference between Jackson and Justice Stephen Breyer, who she replaced on the bench is that Breyer was a purposivist, and living constitutionalist. Similarly, the other liberal justices on the court, Justice Sonia Sotomayor and Justice Elena Kagan are also purposivists and living constitutionalists. Which means their decisions are always going to come down to revising the meaning of the constitution to serve their purpose and reach the policy outcomes they believe to be ideal. Whereas as a progressive originalist, Jackson may often reach the same conclusion as Kagan and Sotomayor, But on some occasions she will find herself in agreement with the so-called conservative originalist Justices in a way that Justice Breyer never did, and Justice Kagan and Justice Sotomayor never will.
This is why last term, on a number of occasions we have found Neil Gorsuch coming together with Jackson quite a bit in Court decisions. Especially in cases that involve the government claiming for itself some new, more expansive power. Gorsuch and Jackson seem to be especially skeptical of such claims. Which is really the most important issue on which we could hope the Court would take a definitive and defiant stand.
We saw this in Tyler v Hennepin County.2 (A case I have covered in past videos) As a quick reminder, this is the case that found home equity theft to be an unconstitutional taking under the takings clause. The Court’s unanimous decision in that case didn’t clarify how that injury should be redressed and they didn’t speak to the second question presented, which asked if home equity theft was unconstitutional under the eighth amendment’s excessive fines clause. This vagueness was likely due to the fact that home equity theft cases tend to split along conservative/liberal lines, with conservatives siding with the homeowner and property rights and with liberal justices siding with the government. I believe a vague ruling was the best one Chief Justice Roberts could get unanimous agreement on. But Gorsuch would pen a concurrence, joined only by Justice Jackson pointing out that the facts of the case strongly suggest it would have been unconstitutional under the excessive fines clause, had the Court addressed that issue. Which will be a persuasive precedent now that the case has been remanded to the seventh circuit to decide how Tyler’s case should be redressed, and will hold sway in any similar future cases where this constitutional question is one the Courts are being asked to take judicial notice of.
In Polselli v. Internal Revenue Service,3 The Court would determine whether the IRS, pursuant to powers granted in §7609 of the Internal Revenue Code[9] is entitled to issue third-party summonses, without notice, for bank account records in which the taxpayer targeted by the summons does not have a legal interest. The Court would find §7609 grants the IRS power to issue such a summons. But Justice Jackson wrote separately joined by Justice Gorsuch, clarifying their ability to issue ‘no notice’ summons is a limited authority and that such notices are important because it allows the target of the summons to exercise procedural protection, especially their ability to file a motion to quash. Take this away and you are limiting a taxpayer’s ability to stop the IRS from obtaining third party records necessarily infringing the rights of taxpayers to proper notice and due process.
In Bittner v United States,4 a case where the Court reined in federal fines for taxpayers who fail to report foreign bank accounts Justice Gorsuch authored a very typical Justice Gorsuch opinion in cases that deal with criminal justice issues or administrative state issues, and this case had both. Which is to say, he gave a very narrow textualist reading of the Banking Secrecy Act[10] that severely limited the power of the administrative State, and to give strong protections to criminal defendants under that act. While Chief Justice Roberts, Justice Kavanaugh and Justice Alito joined Gorsuch’s majority decision in part, the only person who joined the opinion in full was none other than Justice Jackson, who was the only member of the Court to join part three of his majority opinion. Here Gorsuch noted that under the rule of lenity, “statutes imposing penalties are to be ‘construed strictly’ against the government and in favor of individuals.”
The rule of lenity is a principle of criminal statutory interpretation that requires that when a law is unclear or ambiguous, a court must apply the law in the manner that is most favorable to the defendant. This doctrine has a long history in common law, where it traditionally has great importance. Its role in modern jurisprudence seems to be getting far less clear and less common and any decisive invocation of Lenity, such as we find in Bittner is to me, a very welcome occurrence.[11]
This willingness to take principled stands with Justice Gorsuch is part of what I was talking about earlier when I said that Justice Jackson will likely have an outsized influence on the Court. Remember, as I frequently point out this isn’t the 6-3 conservative majority people claim it is. It really is an even split 3-3-3 Court, with the principled conservative faction of Thomas, Gorsuch and Alito, the less principle and pseudo-conservative faction of Chief Justice Roberts and Justices Kavanaugh and Barrett. And the liberal faction of Justices Kagan, Sotomayor and Jackson. Currently, we have Justices Amy Coney Barrett and Bret Kavanaugh, who are not really originalists, but who can be inclined to sometimes throw their support behind the actual Originalist faction, and you have the Progressive Originalist Ketanji Brown Jackson occasionally willing to side with the actual Originalist faction of the Court, that creates a situation in which it is much more likely that a split vote will result in a solid 5 votes along originalist lines. Which is something you never saw when Breyer was on the Court. Usually compromise votes and split decisions the last few years had ended up coming out in favor of the middling pseudo-conservative faction of Roberts, Kavanaugh and Barrett, or the liberal faction of Kagan, Breyer and Sotomayor.
I realize that many people may be annoyed by my “give Jackson a chance pitch.” Because they will argue she was Biden’s appointee and Biden is awful. Which isn’t incorrect, but I would remind anyone saying that, you are doing the very same thing the left did with Justices Gorsuch, Kavanaugh and Barrett. Just completely writing them off as terrible people because they were appointed by Trump and Trump is awful. But Trump supporters understood how stupid and pointless that criticism was when it was happening to their guy. So, if you want to cast Judgements on someone using the same criteria you are free to do so. But just understand that you are merely adopting leftist tactic and talking points..
And some of you will be annoyed with me for other reasons, such as pointing out Justice Jackson wouldn’t define what a woman is at her confirmation hearing. Which as I pointed out in my Jackson confirmation video, was a stupid answer, however it was an even stupider question since that was a strictly partisan political talking point by Republicans to try and make her look foolish, even though that question has ABSOLUTELY NOTHING to do with her qualifications, as a judge. And that by asking her that question, Senator Blackburn looked even more foolish then Jackson & by spending two days berating her for it, conservatives like Ted Cruz and Josh Hawley looked even more foolish than Senator Blackburn... It’s just pathetic to see people like Josh Hawley, Ted Cruz and Tom Cotton complain about conservative appointees to federal courts always getting Borked during their confirmation hearings, only to have them turn around and waste everyone’s time Borking a democratic nominee; claiming that because Justice Jackson was once a public defender that means she is “rooting for murderers and criminals.” And yes, Ted Cruz really fucking said that. Rather than using their time to ask meaningful and substantive questions that might actually be helpful in determining whether or not she is a qualified candidate.
There are plenty of reasonable reasons to be critical of Ketanji Brown Jackson… But I would contend that her replacement of Stephen Breyer is a net good for the Court. I would argue that any other candidate we would have gotten from Joe Biden would have been either a purposivist or living constitutionalist, therefore, ending up with the progressive originalist we got was the best outcome we could have hoped for.
[1] Bravin, Jess. Rethinking Original Intent, Wall Street Journal (March 14, 2009).
[2] Rethinking Original Intent, WSJ (2009)
[3] Wydra, Elizabeth. Exploring Progressive Originalism, Constitution Accountability Center.
[4] District of Columbia v. Heller, 554 U.S. 570, Pp. 576–626 (2008)
[5] Certain Offenses of Freedmen, 1865 Miss. Laws p. 165, §1, in 1 Documentary History of Reconstruction 289 (W. Fleming ed. 1950); see also Regulations for Freedmen in Louisiana, in id., at 279–280; H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236 (1866) (describing a Kentucky law); E. McPherson, The Political History of the United States of America During the Period of Reconstruction 40 (1871) (describing a Florida law); id., at 33 (describing an Alabama law)
[6] (See) General Bldg. Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389 (1982)
(See also) Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 187 (1991)
(See also) Calabresi, Two Cheers for Professor Balkin’s Originalism, 103 Nw. U. L. Rev. 663, 669–670 (2009).
[7] Ibid.
[8] Akhil Reed Amar, Substance and Method in the Year 2000, 28 PEPP. L. REV. 601, 631 n.178 (2001).
[9] 26 U.S. Code § 7609 - Special procedures for third-party summonses
[10] Section 8.1 Bank Secrecy Act, Anti-Money Laundering, and Office of Foreign Assets Control