Justice Alito and “Practical Originalism”

Justice Alito and “Practical Originalism”

As the Supreme Court opens its new Term this week, and Justice Alito releases his new book, we were treated this past weekend to an OpEd piece by the Justice in the Wall Street Journal in which he attempted to defend his originalist theory of judging, which he calls “practical originalism.” No doubt he is trying to allude to Justice Breyer’s “pragmatism,” to make himself look more moderate than he really is. Justice Alito starts by saying “[a]n originalist judge must always start with the text of the Constitution and be wary about going beyond it.” Fair enough. But he then goes on to say “there are times when an important originalist principle isn’t set out explicitly but emerges from the Constitution’s structure.”

So what are his examples of a “structuralist” approach? First, the “anti-commandeering” principle: “No provision in the Constitution says in so many words that Congress may not compel state officials to carry out federal law enforcement responsibilities.” But he infers it anyway. How long would the conservative justices allow that principle to overcome a determined Trump Administration effort to force local authorities to cooperate with federal immigration personnel?
But his second example is even worse. He calls the grant of “presidential immunity” to President Trump “an unmistakable inference from constitutional structure.” Really? Why wouldn’t an originalist say we declared our independence to escape the arbitrary and authoritarian exercise of a king’s power, which suggests precisely the opposite. “No President is above the law” is at least as plausible an inference.

Justice Alito also says, alarmingly: “When I think about the original public meaning of constitutional provisions, I sometimes envision a scene at a colonial-era tavern. After dinner, travelers and area residents gather around the fireplace and read newspapers that discuss the Bill of Rights.” In other words, he sets constitutional doctrine by fantasizing. No professional historian would consider that a legitimate way to assess original intent. If you’re going to be an originalist you’d better be a really good historian, and he is not.

And, if you’re really an originalist, presumably you should use that same approach for statutory interpretation as well as constitutional. But look at Justice Alito’s decision in Callais, the Voting Rights Act case earlier this year. There is ample evidence in the historical record that Congress intended when the Act was passed 60 years ago that courts, and the Department of Justice, could count minorities, both within a district and by numbers of minority controlled districts, to ensure Blacks and other minorities were getting a fair shake. But in upholding gerrymandering, Justice Alito said such “counting” is now unconstitutional. Where is the originalism in that? The 15th Amendment expressly gave Congress the power to adopt legislation protecting the right to vote as part of the package of post-Civil War amendments. It took Congress 100 years to act on that promise, but when they did their intent was unmistakably clear. So how did Justice Alito come to ignore this original statutory intent? By saying that the country had “evolved” over the past 60 years. Really? So law can evolve? Oliver Wendell Holmes, Jr. taught us that when he wrote The Common Law more than a century ago. But evolution of the law is antithetical to true originalism, isn’t it?

The fact is that “originalism” isn’t a coherent theory of judging at all. It’s a mask for making decisions that express conservative policy preferences while denying that is what the “originalist” is doing and saying instead “don’t blame me, blame those guys back in 1789” or whatever other period you need to hearken back to.

There is so much more I could say but I’ll leave it at that for now.

Richard P. Swanson, NYCLA, Immediate Past President

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.

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