WILL THE REAL CONSTITUTIONAL
ORIGINALIST PLEASE STAND UP?
BRADLEY P. JACOBt
Contestant number one, what is your name, please?' "My name is
Antonin Scalia, and I am the leading original meaning textualist on
the United States Supreme Court."
Contestant number two, what is your name, please? "My name is
Clarence Thomas, and I am the leading original meaning textualist on
the United States Supreme Court."
This is fiction, of course. Justices Scalia and Thomas never appeared on To Tell the Truth, and since the show is no longer on the air,
it seems unlikely that they ever will. And even if they could, this is
not the way the television program worked. In To Tell the Truth,
three contestants would each claim to be the same person - generally
a person who was interesting in some way but not so famous as to be
identifiable by sight. ("My name is Elvis Presley" or "my name is John
F. Kennedy" would not have fooled anybody.) Because the whole
point, of course, was that the show's regular panelists (folks like Peggy
Cass, Orson Bean, Kitty Carlisle, and Bill Cullen) had to ask each contestant questions and try to decide, by their answers, which one was
the real whomever-they-claimed-to-be.
The purpose of this Article, however, is very similar to To Tell the
Truth. Justice Antonin Scalia is widely recognized as the preeminent
judicial proponent of the "original meaning," textualist approach to interpreting the United States Constitution. Supporters and opponents
of originalism alike credit him as the contemporary Godfather of the
originalist movement. 2 But there is another Justice on the Supreme
Court, a quiet Justice who rarely speaks during oral argument and is
t Associate Professor, Regent University School of Law. B.A., summa cum laude,
University of Delaware; J.D., University of Chicago Law School. I thank Dean Jeffrey
A. Brauch, Regent University School of Law, and the American Center for Law & Justice for their support in preparing this Article. Special thanks to Benjamin Sisney, Regent Law School class of 2007, and Jaired B. Hall, Regent Law School class of 2008, for
excellent research assistance. All mistakes that remain are mine.
1. The famous opening line of each session of To Tell the Truth, the long-running
television game show that first appeared on the CBS network in the 1950s. See
Wikipedia, To Tell the Truth, http://en.wikipedia.org/wiki/ToTell-theTruth (last visited June 13, 2006).
2. See, e.g., Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of
the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1139-40 (2003); Gene R.
Nichol, Essay, Justice Scalia and the Printz Case: The Trials of an Occasional Originalist, 70 U. COLO. L. REV. 953, 956 (1999); Michael W. McConnell, Comment, Institutions
and Interpretation:A Critique of City of Boerne v. Flores, 111 HARv. L. REV. 153, 164
CREIGHTON LAW REVIEW
[Vol. 40
not famous for his lectures or books on this topic, who may be as much
or more committed to the principles of originalism as Justice Scalia.
That Justice, of course, is Clarence Thomas. The proof of a judge's
judicial philosophy is found in court opinions; so rather than looking to
articles and speeches, the modest purpose of this Article is to play To
Tell the Truth by examining the evidence of the constitutional decisions written by Justices Scalia and Thomas during their fifteen years
on the Supreme Court together 3 in order to ask the question...
Will the real original meaning textualist please stand up?4
I.
WHAT IS AN ORIGINAL MEANING TEXTUALIST, AND WHY
SHOULD WE CARE?
For those who may be new to this topic, there are many different
schools, approaches, and philosophies for interpreting the United
States Constitution. One leading commentator has suggested that
there are six "prevalent sources of meaning for interpreting the Constitution"5 plus no less than nine "approaches" 6 and five "prominent
contemporary schools of legal philosophy." 7 At the bottom line, however, there is one fundamental question that divides constitutional interpreters: Does the Constitution have a fixed meaning that can only be
changed by its specified amendment process,8 or can the Supreme
Court change the document's meaning. at any time? This question
drives most other issues in constitutional law. If the Constitution's
meaning is fluid - or, as it is commonly phrased, if the Constitution is
a "living document" 9 - then it does not function as a firm set of rules
protecting citizens from unwanted government action. Instead, it is
simply a structure that removes tyranny from the hands of hundreds
of elected representatives and transfers it to nine unelected and unaccountable Platonic guardians. The "living Constitution" approach is
(1997); Lawrence Lessig & Cass R. Sunstein, The Presidentand the Administration, 94
COLUM. L. REV. 1, 11 n.34 (1994).
3. Antonin Scalia was sworn in as a Supreme Court Justice on September 26,
1986, and Clarence Thomas on October 23, 1991.
4. The famous closing line of each session of To Tell the Truth, supra note 1.
5. Thomas E. Baker, Constitutional Theory in a Nutshell, 13 WM. & MARY BILL
RTs. J. 57, 68-93 (2004) (text, original understanding, history & tradition, structure,
precedent or doctrine, and philosophy or moral reasoning).
6. Id. at 93-102 (textualists, originalists, doctrinalists, developmentalists, philosophes, structuralists, purposivists, aspirationists, and balancers).
7. Id. at 102-18 (liberal theory, conservative theory, feminist theory, critical race
theory, and postmodern theory).
8.
U.S. CONST.
art. V.
9. "The document that the plurality construes today is unfamiliar to me. It is not
the living charter that I have taken to be our Constitution .... " Michael H. v. Gerald D.,
491 U.S. 110, 141 (1989) (Brennan, J., dissenting).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
597
enormously important if you believe that the federal judiciary should
have freedom to solve our society's problems by incorporating enlightened social policy into the Constitution, regardless of the lack of textual or historical support. On the other hand, if you believe that it is
very important for the written Constitution to tie the hands of the national government, including the judiciary, and force the government
to operate within the written parameters of the Constitution unless
and until those rules are changed through the (admittedly and designedly difficult) amendment process, then it is equally important to oppose the "living Constitution" and apply some form of textualist or
originalist approach to constitutional interpretation. 10
Forty years ago, "living Constitution" thinking was so dominant
in judicial opinions and legal scholarship that a dissenting voice was
rarely heard. 1 ' Beginning in the 1970s, however, a new, or new-old,
perspective began to be heard: originalism. Judge Robert Bork began
writing about "original intent" in 1971,12 and the originalist understanding has developed over the past thirty-five years from "original
intent" to "original understanding" to "original meaning textualism."1 3 Today, an ever-increasing number of scholars and judges argue that the Constitution's meaning should be fixed, not fluid, and
that federal judges should not be free to make up constitutional law.
For present purposes, we can refer to this group as either "originalists" or "textualists." Their acknowledged intellectual leader is Justice Antonin Scalia. His book, A Matter of Interpretation,1 4 makes the
originalist case in no uncertain terms. For example:
10. See Bradley P. Jacob, Back to Basics: Constitutional Meaning and "Tradition,"
39 TEX. TECH L. REV. 261 (2007).
11. "At the end of the 1960s and the beginning of the 1970s, anything resembling
textualism or originalism was in full retreat, routed by the Warren Court's decisions
and methodology and abandoned even by so-called judicial conservatives of the time
(like the second Justice Harlan, Justice Potter Stewart, and the then-new Chief Justice
Warren Burger), whose text-as-springboard interpretive methodology did not differ
drastically from Warren Court liberals in kind so much as in the degree of nontextual
judicial activism thought to be acceptable. Justice Hugo Black, in the main a committed
textualist, was near the end of his distinguished judicial career and becoming an increasingly lonely voice crying in the wilderness, dissenting alone or nearly alone on
originalist-textualist grounds in great cases like Griswold v. Connecticut and Harper v.
Virginia Board of Elections. (Indeed, in this latter case, Justice Black specifically called
out for an 'original meaning' approach to constitutional interpretation.) Textualism and
originalism were largely ignored by the academy, disparaged as essentially irrelevant
and out of tune with the times." Kesavan & Paulsen, 91 GEO. L.J. at 1134 (internal
footnotes omitted).
12. Robert H. Bork, Neutral Principlesand Some First Amendment Problems, 47
IND. L.J. 1 (1971).
13. See Kesavan & Paulsen, 91 GEO. L.J. at 1134-48 (providing a brief history of
modern originalism).
14. ANTONIN SCALiA, A MA1rER OF INTERPRETATION: FEDERAL COuRTS AND THE LAW
(Amy Gutmann ed.,1997).
CREIGHTON LAW REVIEW
[Vol. 40
But the Great Divide with regard to constitutional interpretation is not that between Framers' intent and objective
meaning, but rather that between original meaning (whether
derived from Framers' intent or not) and current meaning.
The ascendant school of constitutional interpretation affirms
the existence of what is called The Living Constitution, a
body of law that (unlike normal statutes) grows and changes
from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and
"find" that changing law. Seems familiar, doesn't it? Yes, it
is the common law returned, but infinitely more powerful
than what the old common law ever pretended to be, for now
it trumps even the statutes of democratic legislatures. Recall
the words I quoted earlier from the Fourth-of-July speech of
the avid codifier Robert Rantoul: "The judge makes law, by
extorting from precedents something which they do not contain. He extends his precedents, which were themselves the
extension of others, till, by this accommodating principle, a
whole system of law is built up without the authority or interference of the legislator." Substitute the word "people" for
"legislator," and it is a perfect description of what
modern
15
American courts have done with the Constitution.
Based on his many eloquent presentations on originalist thought
in speeches, books, and articles, as well as in his Supreme Court opinions, Justice Scalia is uniformly identified by scholars as one of the
intellectual leaders of the originalist movement and certainly as the
Supreme Court's leading originalist. 16 But what about when the rubber meets the road - when the Justices actually decide constitutional
cases? Anecdotally, from reading excerpted Supreme Court decisions
in law school case books, it seems that Justice Thomas may actually
be more consistent in looking to original meaning principles, or at
least in doing so in an overt way, than is Justice Scalia. It is time to
put that theory to the test - to look back over fifteen years of Scalia/
Thomas constitutional jurisprudence and make the judgment: Which
one of them is the real original meaning textualist?
Here are the rules of the game: We will look at constitutional
cases beginning in 1992 (the first year that both served on the Court),
in which either Justice Scalia or Justice Thomas explicitly 17 applied
original meaning, textualist principles, especially where those princi15. Id. at 38-39 (internal footnote omitted).
16. See supra note 2 and accompanying text.
17. An originalist would hope that these two Justices always apply originalist
thinking when they decide cases, but we are lawyers, not telepaths, so it would be a
pointless exercise to try to identify judicial opinions that "could have been" or "probably
were" guided by textualism. We will look for explicit appeals for the Court to apply
original meaning.
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
599
ples challenge modern understandings or current case law. It is not
difficult for a judge to add, "and, by the way, this is the original meaning of the Constitution" (regardless of whether that is true) to an opinion that follows along with contemporary, post-New Deal
understandings of constitutional meaning. We will seek cases in
which a courageous Justice was willing to buck modern trends and
stand for an original textual meaning that has been lost or discarded
by other modern judges and scholars. 18 We will give one point for
writing such an opinion, and one-half point for joining such an opinion
written by the other contestant. Let the game begin!
II.
THE EVIDENCE
1992-
ESTABLISHMENT CLAUSE
The Supreme Court decided Lee v. Weisman' 9 in 1992, Justice
Thomas' first term on the Court. The case involved a non-denominational invocation and benediction at a public school graduation ceremony, offered by a local rabbi at the request of the school's principal,
and determined by Justice Kennedy and the Court majority to violate
the Establishment Clause. Justice Scalia wrote a dissenting opinion, 20 joined by Chief Justice Rehnquist, Justice White, and new Justice Thomas, that strongly invoked principles of the original meaning
of "Congress shall make no law respecting an establishment of
religion"2 1 :
Three Terms ago, I joined an opinion 22 recognizing that the
Establishment Clause must be construed in light of the
"[g]overnment policies of accommodation, acknowledgment,
and support for religion [that] are an accepted part of our political and cultural heritage." That opinion affirmed that "the
18. We will not include those cases in which Justice Scalia, Justice Thomas, or
both make minor references to the importance of the Constitution's original meaning
without really developing textualist arguments. E.g., Apprendi v. New Jersey, 530 U.S.
466, 499 (2000) (Scalia, J., concurring) ("Justice Breyer proceeds on the erroneous and
all-too-common assumption that the Constitution means what we think it ought to
mean. It does not; it means what it says. And the guarantee that '[iun all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury,' has no
intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.").
Other examples would be Justice Scalia's general references to the text of the Due Process Clause in cases such as BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 598-99 (1996)
(Scalia, J., dissenting) and TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 470
(1993) (Scalia, J., concurring). These are admittedly judgment calls, with which the
reader is free to disagree.
19. 505 U.S. 577 (1992).
20. Lee v. Weisman, 505 U.S. 577, 631 (1992) (Scalia, J., dissenting).
21. U.S. CONST. amend. I.
22. County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 657
(1989) (Kennedy, J., concurring in part and dissenting in part).
CREIGHTON LAW REVIEW
[Vol. 40
meaning of the Clause is to be determined by reference to historical practices and understandings." It said that "[a] test for
implementing the protections of the Establishment Clause
that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause."
These views of course prevent me from joining today's opinion, which is conspicuously bereft of any reference to history.
In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court - with nary a mention that it is doing so - lays
waste a tradition that is as old as public-school graduation
ceremonies themselves, and that is a component of an even
more longstanding American tradition of nonsectarian prayer
to God at public celebrations generally .... Today's opinion
shows more forcefully than volumes of argumentation why
our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical
predilections of the Justices of this Court, but must have deep
foundations in the historic practices of our people.
Justice Holmes' aphorism that "a page of history is worth a
volume of logic" applies with particular force to our Establishment Clause jurisprudence. As we have recognized, our interpretation of the Establishment Clause should "compor[t] with
what history reveals was the contemporaneous understanding of its guarantees." "[T]he line we must draw between the
permissible and the impermissible is one which accords with
history and faithfully reflects the understanding of the
Founding Fathers." "[H]istorical evidence sheds light not only
on what the draftsmen intended the Establishment Clause to
mean, but also on how they thought that Clause applied" to
contemporaneous practices. Thus, "[t]he existence from the
beginning of the Nation's life of a practice, [while] not conclusive of its constitutionality ...[,] is a fact of considerable import in the interpretation" of the Establishment Clause.
The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition.
Illustrations of this point have been amply provided in our
prior opinions, but since the Court is so oblivious to our history as to suggest that the Constitution restricts "preservation and transmission of religious beliefs . . .to the private
sphere," it appears necessary to provide another brief
account.23
The opinion goes on to describe many historical examples of presidential and other public, government-encouraged prayers, dating back
23. Weisman, 505 U.S. at 631-33 (Scalia, J., dissenting) (internal citations
omitted).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
601
to the time when the Bill of Rights was written, to illustrate that these
practices could not have been what the Framers meant by an "establishment of religion." Later in the opinion, Justice Scalia explains
what people of the founding generation did mean when they referred
to "religious establishments":
The deeper flaw in the Court's opinion does not lie in its
wrong answer to the question whether there was state-induced "peer-pressure" coercion; it lies, rather, in the Court's
making violation of the Establishment Clause hinge on such
a precious question. The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of
penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array
of civil disabilities. Thus, for example, in the Colony of Virginia, where the Church of England had been established,
ministers were required by law to conform to the doctrine and
rites of the Church of England; and all persons were required
to attend church and observe the Sabbath, were tithed for the
public support of Anglican ministers, and were taxed for the
costs of building and repairing churches.
The Establishment Clause was adopted to prohibit such an
establishment of religion at the federal level (and to protect
state establishments of religion from federal interference). I
will further acknowledge for the sake of argument that, as
some scholars have argued, by 1790 the term "establishment"
had acquired an additional meaning - "financial support of
religion generally, by public taxation" - that reflected the development of "general or multiple" establishments, not limited to a single church. But that would still be an
establishment coerced by force of law. And I will further concede that our constitutional tradition, from the Declaration of
Independence and the first inaugural address of Washington,
quoted earlier, down to the present day, has, with a few aberrations, ruled out of order government-sponsored endorsement of religion - even when no legal coercion is present, and
indeed even when no ersatz, "peer-pressure" psycho-coercion
is present - where the endorsement is sectarian, in the sense
of specifying details upon which men and women who believe
in a benevolent, omnipotent Creator and Ruler of the world
are known to differ (for example, the divinity of Christ). But
there is simply no support for the proposition that the officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman - with no one legally coerced to
recite them - violated the Constitution of the United States.
To the contrary, they are so characteristically American they
602
CREIGHTON LAW REVIEW
[Vol. 40
could have come from the pen of George Washington or Abraham Lincoln himself.
Thus, while I have no quarrel with the Court's general proposition that the Establishment Clause "guarantees that government may not coerce anyone to support or participate in
religion or its exercise," I see no warrant for expanding the
concept of coercion beyond acts backed by threat of penalty a brand of coercion that, happily, is readily discernible to
those of us who have made a career of reading the disciples of
Blackstone rather than of Freud. The Framers were indeed
opposed to coercion of religious worship by the National Government; but, as their own sponsorship of nonsectarian
prayer in public events demonstrates, they understood that
24
"[s]peech is not coercive; the listener may do as he likes."
This Weisman dissent, at the very beginning of Justice Thomas'
career on the Court, was an excellent example of originalist thinking
and writing. We will give one point to Justice Scalia for writing it and
half a point to Justice Thomas for joining it.
1995-
ESTABLISHMENT CLAUSE
Another important Establishment Clause case came along in
1995, Rosenberger v. Rector & Visitors of the University of Virginia,25
in which the Court majority (Justice Kennedy, joined by Chief Justice
Rehnquist and Justices O'Connor, Scalia, and Thomas) found that the
University of Virginia violated the free speech rights of a student
group when it denied the group funding to publish a magazine that
offered news, views, and commentary from a Christian perspective.
The University had defended its denial of funding, even though similar publications with different worldviews did receive University
funds, with the claim that it would violate the Establishment Clause
to give public university funds to a "religious" publication. Thus, in
deciding the case, the Supreme Court had to address the Establishment Clause issue. It ruled that to "obey the Establishment Clause, it
was not necessary for the University to deny eligibility to student publications because of their viewpoint ....
There is no Establishment
Clause violation in the University's honoring its duties under the Free
26
Speech Clause."
The Rosenberger majority opinion, joined by both Justice Scalia
and Justice Thomas, was not an originalist opinion. However, Justice
Souter in dissent (joined by Justices Stevens, Ginsburg, and Breyer)
argued that this type of nondiscriminatory funding for "religious" as
24.
25.
26.
Id. at 640-42 (Scalia, J., dissenting) (internal citations omitted).
515 U.S. 819 (1995).
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 845-46 (1995).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
603
well as "secular" viewpoints would have been viewed as unconstitutional at the time of the American founding. This prompted Justice
Thomas to respond with a lengthy concurring opinion 2 7 concerning
the original meaning of the Establishment Clause:
Although the dissent starts down the right path in consulting
the original meaning of the Establishment Clause, its misleading application of history yields a principle that is inconsistent with our Nation's long tradition of allowing religious
adherents to participate on equal terms in neutral government programs.
Even assuming that the Virginia debate on the so-called "Assessment Controversy" was indicative of the principles embodied in the Establishment Clause, this incident hardly
compels the dissent's conclusion that government must actively discriminate against religion. The dissent's historical
discussion glosses over the fundamental characteristic of the
Virginia assessment bill that sparked the controversy: The
assessment was to be imposed for the support of clergy in the
performance of their function of teaching religion. Thus, the
"Bill Establishing a Provision for Teachers of the Christian
Religion" provided for the collection of a specific tax, the proceeds of which were to be appropriated "by the Vestries, Elders, or Directors of each religious society ... to a provision
for a Minister or Teacher of the Gospel of their denomination,
or the providing places of divine worship, and to none other
use whatsoever. . . ." Finally, although modern historians
have focused on the opt-out provision, the dissent provides no
indication that Madison viewed the Virginia assessment as
an evenhanded program; in fact, several of the objections expressed in Madison's Memorial and Remonstrance Against
Religious Assessments focus clearly on the bill's violation of
the principle of "equality," or evenhandedness.
[Madison's Remonstrance] must be understood in this context. Contrary to the dissent's suggestion, Madison's objection
to the assessment bill did not rest on the premise that religious entities may never participate on equal terms in neutral
government programs. Nor did Madison embrace the argument that forms the linchpin of the dissent: that monetary
subsidies are constitutionally different from other neutral
benefits programs. Instead, Madison's comments are more
consistent with the neutrality principle that the dissent inexplicably discards. According to Madison, the Virginia assessment was flawed because it "violate[d] that equality which
ought to be the basis of every law." The assessment violated
27.
Rosenberger, 515 U.S. at 852 (Thomas, J., concurring).
CREIGHTON LAW REVIEW
[Vol. 40
the "equality" principle not because it allowed religious
groups to participate in a generally available government
program, but because the bill singled out religious entities for
special benefits.
Legal commentators have disagreed about the historical lesson to take from the Assessment Controversy. For some, the
experience in Virginia is consistent with the view that the
Framers saw the Establishment Clause simply as a prohibition on governmental preferences for some religious faiths
over others. Other commentators have rejected this view, concluding that the Establishment Clause forbids not only government preferences for some religious sects over others, but
also government preferences for religion over irreligion.
I find much to commend the former view. Madison's focus on
the preferential nature of the assessment was not restricted
to the fourth paragraph of the Remonstrance discussed
above. The funding provided by the Virginia assessment was
to be extended only to Christian sects, and the Remonstrance
seized on this defect: "Who does not see that the same authority which can establish Christianity, in exclusion of all other
Religions, may establish with the same ease any particular
sect of Christians, in exclusion of all other Sects. .. ."
The conclusion that Madison saw the principle of nonestablishment as barring governmental preferences for particular
religious faiths seems especially clear in light of statements
he made in the more relevant context of the House debates on
the First Amendment. Moreover, even if more extreme notions of the separation of church and state can be attributed
to Madison, many of them clearly stem from "arguments reflecting the concepts of natural law, natural rights, and the
social contract between government and a civil society,"
rather than the principle of nonestablishment in the Constitution. In any event, the views of one man do not establish
the original understanding of the First Amendment.
But resolution of this debate is not necessary to decide this
case. Under any understanding of the Assessment Controversy, the history cited by the dissent cannot support the conclusion that the Establishment Clause "categorically
condemn[s] state programs directly aiding religious activity"
when that aid is part of a neutral program available to a wide
array of beneficiaries. Even if Madison believed that the principle of nonestablishment of religion precluded government
financial support for religion per se (in the sense of government benefits specifically targeting religion), there is no indication that at the time of the framing he took the dissent's
extreme view that the government must discriminate against
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
religious adherents by excluding them from more generally
available financial subsidies....
Stripped of its flawed historical premise, the dissent's argument is reduced to the claim that our Establishment Clause
jurisprudence permits neutrality in the context of access to
government facilities but requires discrimination in access to
government funds. The dissent purports to locate the prohibition against "direct public funding" at the "heart" of the Establishment Clause, but this conclusion fails to confront
historical examples of funding that date back to the time of
the founding. To take but one famous example, both Houses
of the First Congress elected chaplains, and that Congress
enacted legislation providing for an annual salary of $500 to
be paid out of the Treasury. Madison himself was a member
of the committee that recommended the chaplain system in
the House .... A number of other, less familiar examples of
what amount to direct funding appear in early Acts of Congress.... The historical evidence of government support for
religious entities through property tax exemptions is also
overwhelming. As the dissent concedes, property tax exemptions for religious bodies "have been in place for over 200
years without disruption to the interests represented by the
Establishment Clause." In my view, the dissent's acceptance
of this tradition puts to rest the notion that the Establishment Clause bars monetary aid to religious groups even when
the aid is equally available to other groups. ...
The Virginia experience during the period of the Assessment
Controversy itself is inconsistent with the rigid "no-aid" principle embraced by the dissent. Since at least 1777, the Virginia Legislature authorized tax exemptions for property
belonging to the "commonwealth, or to any county, town, college, houses for divine worship, or seminary of learning." And
even Thomas Jefferson, respondents' founder and a champion
of disestablishment in Virginia, advocated the use of public
funds in Virginia for a department of theology in conjunction
with other professional schools. ...
Our Nation's tradition of allowing religious adherents to participate in evenhanded government programs is hardly limited to the class of "essential public benefits" identified by the
dissent. A broader tradition can be traced at least as far back
as the First Congress, which ratified the Northwest Ordinance of 1787. Article III of that famous enactment of the
Confederation Congress had provided: "Religion, morality,
and knowledge .. .being necessary to good government and
the happiness of mankind, schools and the means of education shall forever be encouraged." Congress subsequently set
aside federal lands in the Northwest Territory and other ter-
CREIGHTON LAW REVIEW
[Vol. 40
ritories for the use of schools. Many of the schools that enjoyed the benefits of these land grants undoubtedly were
church-affiliated sectarian institutions as there was no requirement that the schools be "public." Nevertheless, early
Congresses found no problem with the provision of such neutral benefits....
Thus, history provides an answer for the constitutional question posed by this case, but it is not the one given by the dissent. The dissent identifies no evidence that the Framers
intended to disable religious entities from participating on
neutral terms in evenhanded government programs. The evidence that does exist points in the opposite direction and pro28
vides ample support for today's decision.
This thoroughly originalist search for the meaning of the Establishment Clause was not joined by Justice Scalia. One point to Justice
Thomas.
1995-
FREEDOM OF SPEECH
McIntyre v.Ohio Elections Commission29 was a case involving a
state law that banned the distribution of anonymous campaign literature. The Court majority found that the law violated the First and
Fourteenth Amendments as an abridgement of free speech, using a
balancing approach that suggested "living Constitution" thinking.
Justice Thomas concurred in the judgment but made an originalist critique of the majority's methodology:
I agree with the majority's conclusion that Ohio's election
law . . .is inconsistent with the First Amendment. I would
apply, however, a different methodology to this case. Instead
of asking whether "an honorable tradition" of anonymous
speech has existed throughout American history, or what the
"value" of anonymous speech might be, we should determine
whether the phrase "freedom of speech, or of the press," as
originally understood, protected anonymous political leafletting. I believe that it did.
The First Amendment states that the government "shall
make no law .. .abridging the freedom of speech, or of the
press." When interpreting the Free Speech and Press
Clauses, we must be guided by their original meaning, for
"[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it
means now." We have long recognized that the meaning of
the Constitution "must necessarily depend on the words of
28.
29.
Id. at 852-63 (Thomas, J., concurring) (internal citations omitted).
514 U.S. 334 (1995).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
607
the constitution [and] the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions.., in the several states." We should
seek the original understanding when we interpret the
Speech and Press Clauses, just as we do when we read the
Religion Clauses of the First Amendment. When the Framers
did not discuss the precise question at issue, we have turned
to "what history reveals was the contemporaneous understanding of [the Establishment Clause's] guarantees." "[Tihe
line we must draw between the permissible and the impermissible is one which accords with history and faithfully
re30
flects the understanding of the Founding Fathers."
Justice Thomas went through a lengthy examination of the practices and writings of the founding generation, looking to determine
whether anonymous political leafleting would have been viewed at
that time as protected by freedom of speech or of the press. He
concluded:
I cannot join the majority's analysis because it deviates from
our settled approach to interpreting the Constitution and because it superimposes its modern theories concerning expression upon the constitutional text. Whether "great works of
literature" - by Voltaire or George Eliot have been published
anonymously should be irrelevant to our analysis, because it
sheds no light on what the phrases "free speech" or "free
press" meant to the people who drafted and ratified the First
Amendment. Similarly, whether certain types of expression
have "value" today has little significance; what is important
is whether the Framers in 1791 believed anonymous speech
sufficiently valuable to deserve the protection of the Bill of
Rights. And although the majority faithfully follows our approach to "content-based" speech regulations, we need not undertake this analysis when the original understanding
provides the answer.
While, like Justice Scalia, I am loath to overturn a century of
practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition.
When interpreting other provisions of the Constitution, this
Court has believed itself bound by the text of the Constitution
and by the intent of those who drafted and ratified it. It
should hold itself to no less a standard when interpreting the
Speech and Press Clauses. After reviewing the weight of the
historical evidence, it seems that the Framers understood the
First Amendment to protect an author's right to express his
thoughts on political candidates or issues in an anonymous
30. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 358-59 (1995) (Thomas, J.,
concurring) (internal citations omitted).
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fashion. Because the majority has adopted an analysis that is
text and history, I
largely unconnected to the Constitution's
31
concur only in the judgment.
Justice Scalia, joined by Chief Justice Rehnquist, dissented. He
began by acknowledging that the correct starting place for analysis
was the Constitution's meaning at the time it was enacted. However,
to Justice Scalia, the originalist evidence presented by Justice Thomas
was unpersuasive and the question of original meaning was, in this
case, indeterminable:
The question posed by the present case is not the easiest sort
to answer for those who adhere to the Court's (and the society's) traditional view that the Constitution bears its original
meaning and is unchanging. Under that view, "[o]n every
question of construction, [we should] carry ourselves back to
the time when the Constitution was adopted; recollect the
spirit manifested in the debates; and instead of trying [to
find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was
passed." That technique is simple of application when government conduct that is claimed to violate the Bill of Rights or
the Fourteenth Amendment is shown, upon investigation, to
have been engaged in without objection at the very time the
Bill of Rights or the Fourteenth Amendment was adopted.
There is no doubt, for example, that laws against libel and
obscenity do not violate "the freedom of speech" to which the
First Amendment refers; they existed and were universally
approved in 1791. Application of the principle of an unchanging Constitution is also simple enough at the other extreme,
where the government conduct at issue was not engaged in at
the time of adoption, and there is ample evidence that the
reason it was not engaged in is that it was thought to violate
the right embodied in the constitutional guarantee. Racks
and thumbscrews, well-known instruments for inflicting
pain, were not in use because they were regarded as cruel
punishments.
The present case lies between those two extremes. Anonymous electioneering was not prohibited by law in 1791 or in
1868. In fact, it was widely practiced at the earlier date, an
understandable legacy of the revolutionary era in which political dissent could produce governmental reprisal. I need not
dwell upon the evidence of that, since it is described at length
in today's concurrence. The practice of anonymous electioneering may have been less general in 1868, when the Fourteenth Amendment was adopted, but at least as late as 1837
31.
McIntyre, 514 U.S. at 370-71 (Thomas, J., concurring).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
609
it was respectable enough to be engaged in by Abraham Lincoln. But to prove that anonymous electioneering was used
frequently is not to establish that it is a constitutional
right.32
Because the original meaning of the Constitution could not be determined, 3 3 Justice Scalia turned to "the widespread and longstanding
traditions of our people" 34 and found that legal restrictions on anonymous political pamphleteering have been widely accepted in our society for a long time, and so they must be constitutional.
Justice Thomas' concurring opinion in McIntyre is powerful
originalist writing that earns him a point. Justice Scalia started well,
but in the end he turned to a "contemporary values" approach that is
inconsistent with originalism. We will give him a half point.
1995-
COMMERCE CLAUSE
In 1995, the Supreme Court did something that it had not done
for more than fifty years preceding: it ruled that a statute enacted by
Congress exceeded the constitutional power granted by the Commerce
Clause. 3 5 The United States v. Lopez 36 majority opinion, written by
Chief Justice Rehnquist, merely held that the federal Gun-Free School
Zones Act of 1990 regulated conduct (the carrying of firearms in proximity to a school) that did not necessarily "substantially affect" commerce among the states and, therefore, exceeded the powers of
Congress.
In his concurring opinion, 37 however, Justice Thomas made one of
his most powerful appeals to original meaning textualism, arguing
that the Court's entire Commerce Clause jurisprudence since the New
Deal has strayed from any defensible meaning of the text. He began:
The Court today properly concludes that the Commerce
Clause does not grant Congress the authority to prohibit gun
possession within 1,000 feet of a school, as it attempted to do
in the Gun-Free School Zones Act of 1990. Although I join the
majority, I write separately to observe that our case law has
drifted far from the original understanding of the Commerce
Clause. In a future case, we ought to temper our Commerce
32. Id. at 371-73 (Scalia, J., dissenting) (internal citations omitted).
33. Although it is not completely clear, it is possible that Justice Scalia was also
looking, unsuccessfully, for the original meaning of the Fourteenth Amendment when it
was ratified. Id. at 374-77 (Scalia, J., dissenting).
34. Id. at 375 (Scalia, J., dissenting).
35. The Commerce Clause states "The Congress shall have power to ... regulate
commerce with foreign nations, and among the several states, and with the Indian
tribes." U.S. CONST. art. I, § 8, cl. 3.
36. 514 U.S. 549 (1995).
37. United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring).
CREIGHTON LAW REVIEW
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Clause jurisprudence in a manner that both makes sense of
our more recent case law and 38
is more faithful to the original
understanding of that Clause.
Part I of Justice Thomas' concurrence focused on the constitutional text:
At the time the original Constitution was ratified, "commerce" consisted of selling, buying, and bartering, as well as
transporting for these purposes. This understanding finds
support in the etymology of the word, which literally means
"with merchandise." In fact, when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering
sense) and commerce interchangeably.
As one would expect, the term "commerce" was used in contradistinction to productive activities such as manufacturing
and agriculture. Alexander Hamilton, for example, repeatedly treated commerce, agriculture, and manufacturing as
three separate endeavors. The same distinctions were made
in the state ratification conventions.
Moreover, interjecting a modern sense of commerce into the
Constitution generates significant textual and structural
problems. For example, one cannot replace "commerce" with a
different type of enterprise, such as manufacturing. When a
manufacturer produces a car, assembly cannot take place
"with a foreign nation" or "with the Indian Tribes." Parts may
come from different States or other nations and hence may
have been in the flow of commerce at one time, but manufacturing takes place at a discrete site. Agriculture and manufacturing involve the production of goods; commerce
encompasses traffic in such articles....
The Constitution not only uses the word "commerce" in a narrower sense than our case law might suggest, it also does not
support the proposition that Congress has authority over all
activities that "substantially affect" interstate commerce. The
Commerce Clause does not state that Congress may "regulate
matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian
Tribes"....
Put simply, much if not all of Art. I, §8 (including portions of
the Commerce Clause itself), would be surplusage if Congress
had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that
makes the rest of §8 superfluous simply cannot be correct.
Yet this Court's Commerce Clause jurisprudence has en38.
Lopez, 514 U.S. at 584 (Thomas, J., concurring) (citation omitted).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
611
dorsed just such an interpretation: The power we have accorded Congress has swallowed Art. I, §8....
Our construction of the scope of congressional authority has
the additional problem of coming close to turning the Tenth
Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited
by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince39 us that the
"substantial effects" test should be reexamined.
Justice Thomas went on to discuss the ratification-era history of
the Constitution to show that the contemporary "everything included"
definition of "commerce" is inconsistent with that word's usage and
understanding at the time the document was written. 40 Finally, he
discussed Supreme Court case law precedents to show where those
precedents had diverged from the Constitution's original meaning 4 l
and concluded with the comment, "At an appropriate juncture, I think
we must modify our Commerce Clause jurisprudence. Today, it is easy
enough to say that the Clause certainly does not empower Congress to
42
ban gun possession within 1,000 feet of a school."
Lopez is, at least up to this point in his career, one of Justice
Thomas' lengthiest, most thorough, and most persuasive pronouncements on originalism. It clearly earns him a point in our scorecard.
Justice Scalia did not join Justice Thomas' concurrence or write separately in Lopez, so he scores nothing here.
1997-
APPOINTMENTS CLAUSE
In Edmond v. United States,4 3 Justice Scalia, whose opinion was
joined by Justice Thomas and the entire Court (except for a partial
concurrence in the judgment by Justice Souter 44 ), looked to the Constitution's original meaning to determine whether judges in the Coast
Guard Court of Criminal Appeals are "inferior officers" of the United
States whose appointments may be vested by Congress in the Secretary of Transportation. 4 5 Justice Scalia looked to the actions of the
First Congress to determine how the words "inferior officer" would
39.
Id.
at 585-89 (Thomas, J., concurring) (internal citations and footnotes
omitted).
40. Id. at 590-93 (Thomas, J., concurring).
41. Id. at 593-99 (Thomas, J., concurring).
42. Id. at 602 (Thomas, J., concurring).
43. 520 U.S. 651 (1997).
44. Edmond v. United States, 520 U.S. 651, 666 (1997) (Souter, J., concurring).
45. Edmond, 520 U.S. at 653 (majority opinion). See U.S. CONST. art. II, § 2 ("...
but the Congress may by law vest the appointment of such inferior officers, as they
think proper, in the President alone, in the courts of law, or in the heads of
departments").
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have been understood around the time of the Constitution's
enactment:
This understanding of the Appointments Clause conforms
with the views of the first Congress. On July 27, 1789, Congress established the first Executive department, the Department of Foreign Affairs. In so doing, it expressly designated
the Secretary of the Department as a "principal officer," and
his subordinate, the Chief Clerk of the Department, as an "inferior officer.. .."
Congress used similar language in establishing the Department of War, repeatedly referring to the Secretary of that department as a "principal officer," and the Chief Clerk, who
would be "employed" within the Department as the Secretary
"shall deem proper," as an "inferior officer." 46
One point to Justice Scalia for looking to contemporaneous interpretations to determine the original meaning of the text. Justice
Thomas also joined the opinion, so he receives half a point.
1997-
COMMERCE CLAUSE
In Camps Newfound/ Owatonna, Inc. v. Town of Harrison,4 7 the
Court majority found that a state property tax exemption for charities
that primarily benefited state residents, with no similar exemption being given to charities who ministered to out-of-state guests, was unconstitutional under the so-called "dormant" or "negative" Commerce
Clause. Justice Scalia dissented, 48 joined by Chief Justice Rehnquist
and Justices Thomas and Ginsburg, without making any explicit
49
originalist arguments. Justice Thomas added his own dissent,
joined by Justice Scalia and in part by Chief Justice Rehnquist, which
made a strong textualist case by arguing that instead of deciding inter-state economic discrimination cases under the non-textual negative Commerce Clause, the Court should breathe new life into the
50
Import-Export Clause:
46. Edmond, 520 U.S. at 663-64 (citing The Act of August 7, 1789, ch. 7, 1 Stat. 49).
47. 520 U.S. 564 (1997).
48. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 595
(1997) (Scalia, J., dissenting).
49. Camps, 520 U.S. at 609 (Thomas, J., dissenting).
50. Id. at 609-40 (Thomas, J., dissenting). The Import-Export Clause states:
No State shall, without the Consent of the Congress, lay any Imposts or Duties
on Imports or Exports, except what may be absolutely necessary for executing
its inspection laws: and the net Produce of all Duties and Imposts, laid by any
State on Imports or Exports, shall be for the Use of the Treasury of the United
States; and all such Laws shall be subject to the Revision and Controul of the
Congress.
U.S. CONST. art. I, §10, cl. 2.
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
61Z
I write separately.., because I believe that the improper expansion undertaken today is possible only because our negative Commerce Clause jurisprudence, developed primarily to
invalidate discriminatory state taxation of interstate commerce, was already both overbroad and unnecessary. It was
overbroad because, unmoored from any constitutional text, it
brought within the supervisory authority of the federal courts
state action far afield from the discriminatory taxes it was
primarily designed to check. It was unnecessary because the
Constitution would seem to provide an express check on the
States' power to levy certain discriminatory taxes on the commerce of other States - not in the judicially created negative
Commerce Clause, but in the Article I, §10, Import-Export
Clause.... That the expansion effected by today's decision
finds some support in the morass of our negative Commerce
Clause case law only serves to highlight the need to abandon
that failed jurisprudence and to consider restoring the original Import-Export Clause check on discriminatory state taxation to what appears to be its proper role ....
The negative
Commerce Clause has no basis in the text of the Constitution,
makes little sense, and has proved virtually unworkable in
application. 5 1
In my view, none of this policy-laden decisionmaking is
proper. Rather, the Court should confine itself to interpreting
the text of the Constitution, which itself seems to prohibit in
plain terms certain of the more egregious state taxes on interstate commerce described above, and leaves to Congress the
policy choices necessary for any further regulation of interstate commerce.
Article I, § 10, cl. 2 of the Constitution provides that "[n]o
State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports. . . ." To the 20-century
reader, the Clause appears only to prohibit States from levying certain kinds of taxes on goods imported from or exported
to foreign nations. But a strong argument can be made that
for the Constitution's Framers and ratifiers - representatives
of States which still viewed themselves as semi-independent
sovereigns - the terms "imports" and "exports" encompassed
not just trade with foreign nations, but trade with other
States as well.
The late Professor William Crosskey, in a persuasive treatment of this subject nearly a half century ago, unearthed numerous founding-era examples in which the word "import"
referred to goods produced in other States. Crosskey recounts, for example, that merchants frequently published ad51. Camps, 520 U.S. at 610 (Thomas, J., dissenting) (internal citations omitted).
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vertisements in the local newspapers announcing recent
shipments of such "imported" goods as "Philadelphia Flour,"
"Carolina Rice," and "Connecticut Beef." Similarly, the word
"export" was used to refer to goods shipped both to other
States and abroad. One writer, for example, urged his fellow
Connecticut citizens to manufacture stockings in sufficient
quantity not only for the supply of Connecticut "but for exportation to other States" as well. Another argued that Connecticut could enrich itself "[b]y making and refining Cyder for
exportation with which we might supply the Southern States,
52
as well as the large provinces of Quebec and Nova-Scotia."
After discussing at some length the textual and historical reasons
for believing that the Import-Export Clause applied to interstate, as
well as international, transactions, Justice Thomas concluded that
this textual application of the Constitution would clearly uphold the
tax exemption statute:
Were we thus to shed ourselves of our nontextual negative
Commerce Clause and all the accompanying multifactor balancing tests we have employed, and instead merely apply
what appears to me to be the relevant provision of the Constitution, this would seem to be a fairly straightforward case (although I reserve final judgment of the matter for a case when
the Import-Export Clause is specifically addressed by the
parties). Unlike the Export Clause of Art. I, §9, which prohibits the Congress from levying any tax on exports, the ImportExport Clause
only prohibits States from levying "duties" and
"imposts." 53
The tax at issue here is nothing more than a tax on real property. Such taxes were classified as "direct" taxes at the time
of the framing, and were not within the class of "indirect"
taxes encompassed by the common understanding of the word
"duties." The amount of the Maine tax is tied to the value of
the real property on which it is imposed, not to any particular
goods, and not even to the number of campers served. It does
not appear, therefore, to be a "duty" on "imports" in any sense
of the words. Even when coupled with the tax exemption for
certain Maine charities (which is, in truth, no different than a
subsidy paid out of the State's general revenues), Maine's
property tax would not seem to be a "Duty or Impost on Imports or Exports" within the meaning of the Import-Export
54
Clause.
52.
53.
54.
Id. at 620-22 (Thomas, J., dissenting) (internal citations omitted).
Id. at 637 (Thomas, J., dissenting).
Id. at 640 (Thomas, J., dissenting).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
615
This is an excellent example of original-meaning textualism in a
judicial decision, which earns one point for Justice Thomas and half a
point for Justice Scalia.
1997-
FEDERALISM
Printz v. United States 5 5 was an important case raising the question of whether Congress had authority, as part of the interim implementation plan of the Brady Handgun Violence Prevention Act,5 6 to
require local law enforcement officials to perform certain federal duties. Justice Scalia wrote the opinion for a five-Justice majority of the
Court, holding that this "commandeering" of state officials to help implement a federal law-enforcement scheme unconstitutionally violated
basic principles of federalism. Justice Scalia's opinion rejected any
textual answer to the constitutional question, 5 7 relying instead on
general historical practices, the structure of the Constitution, and case
59
law. 58 The discussions of history and of the Constitution's structure
are certainly positive and powerful. Justice Scalia put significant
weight on the views and practices of our nation's early generation. In
terms of our textualist analysis, however, these discussions were tempered by his concessions that the Constitution's words shed no light on
the question, and that the Supreme Court's recent case law was "most
60
conclusive[] in the present litigation."
It was Justice Thomas' concurring opinion in Printz6 1 that really
carried the day in looking to original meaning textualist principles.
He argued that the original meaning of both the Commerce Clause
and the Second Amendment might provide textual reasons to support
the unconstitutionality of the Brady Act. Justice Thomas said this:
The Court today properly holds that the Brady Act violates
the Tenth Amendment in that it compels state law enforcement officers to "administer or enforce a federal regulatory
program." Although I join the Court's opinion in full, I write
separately to emphasize that the Tenth Amendment affirms
the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited, pow55. 521 U.S. 898 (1997).
56. Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536
(1993).
57. Printz v. United States, 521 U.S. 898, 905 (1997). Justice Scalia stated, "there
is no constitutional text speaking to this precise question." Printz, 521 U.S. at 905.
58. Id. Justice Scalia stated that "the answer to the CLEOs' challenge must be
sought in historical understanding and practice, in the structure of the Constitution,
and in the jurisprudence of this Court." Id.
59. See generally id. at 905-25.
60. Id. at 925.
61. Id. at 936 (Thomas, J., concurring).
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ers. "[Tihat those limits may not be mistaken, or forgotten,
the constitution is written." Accordingly, the Federal Government may act only where the Constitution authorizes it to do
SO.
In my "revisionist" view, the Federal Government's authority
under the Commerce Clause, which merely allocates to Congress the power "to regulate Commerce... among the several
States," does not extend to the regulation of wholly intra
state, point-of-sale transactions. Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law
enforcement officers into administering and enforcing such
regulations. Although this Court has long interpreted the
Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe
that we must "temper our Commerce Clause jurisprudence"
and return to an interpretation better rooted in the Clause's
original understanding.
Even if we construe Congress' authority to regulate interstate
commerce to encompass those intrastate transactions that
"substantially affect" interstate commerce, I question
whether Congress can regulate the particular transactions at
issue here. The Constitution, in addition to delegating certain
enumerated powers to Congress, places whole areas outside
the reach of Congress' regulatory authority. The First
Amendment, for example, is fittingly celebrated for preventing Congress from "prohibiting the free exercise" of religion or
"abridging the freedom of speech." The Second Amendment
similarly appears to contain an express limitation on the Government's authority. That Amendment provides: "A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear arms, shall not be
infringed." This Court has not had recent occasion to consider
the nature of the substantive right safeguarded by the Second
Amendment. If, however, the Second Amendment is read to
confer a personal right to "keep and bear arms," a colorable
argument exists that the Federal Government's regulatory
scheme, at least as it pertains to the purely intrastate sale or
possession of firearms, runs afoul of that Amendment's protections. As the parties did not raise this argument, however,
we need not consider it here. Perhaps, at some future date,
this Court will have the opportunity to determine whether
Justice Story was correct when he wrote that the right to bear
arms "has justly been considered, as the palladium of the liberties of a republic." In the meantime, I join the Court's opin-
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
617
the Brady Act
ion striking down the challenged provisions of
62
as inconsistent with the Tenth Amendment.
We will give one point to Justice Thomas for powerful originalism
and half a point to Justice Scalia for a weaker version.
1997- FREE
EXERCISE
In 1990, before Justice Thomas joined the Supreme Court, Justice
Scalia authored the opinion 63 that rocked the world of religious liberty
advocacy by discarding the established "strict scrutiny" test for Free
Exercise Clause cases and substituting a new "neutral law of general
applicability" test that would make it much more difficult for individuals to prevail over the government with their religious freedom
claims. 6 4 Employment Division, Department of Human Resources v.
Smith 65 was not an originalist opinion; the Court supported its new
approach to free exercise by somewhat creative recharacterizations 6of7
66
After some lengthy legislative battles,
its own case precedents.
Congress responded to the Smith decision by reinstituting strict scrutiny in religious freedom cases by means of a federal statute, the Religious Freedom Restoration Act of 199368 ("RFRA"). RFRA's
to the
constitutionality was challenged in court, leading eventually
69
Supreme Court's 1997 decision, City of Boerne v. Flores.
The majority opinion in City of Boerne was written by Justice
Kennedy. 70 However, Justice O'Connor, who had concurred in the
outcome of Smith but had disagreed with the Court's change in free
exercise jurisprudence, 7 1 wrote a dissenting opinion in City of
Boerne 72 that continued to challenge the Smith decision. Justice
O'Connor based her Boerne challenge to the Court's rejection of free
62. Id. at 936-39 (Thomas, J., concurring) (internal citations omitted).
63. Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 872 (1990),
superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141,
107 Stat. 1488, as recognized in Gonzales v. 0 Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418 (2006).
64. Smith, 494 U.S. at 885. See also Bradley P. Jacob, Free Exercise in the "Lobbying Nineties," 84 NEB. L. REV. 795, 808-14 (2006).
65. 494 U.S. 872 (1990), superseded by statute, Religious Freedom Restoration Act
of 1993, Pub. L. No. 103-141, 107 Stat. 1488, as recognized in Gonzales v. 0 Centro
Espirita Beneficente Uniao do Vegetal, 126 S. Ct. 1211 (2006).
66. See Jacob, 84 NEB. L. REV. at 810-11.
67. Id. at 816-22.
68. Pub. L. No. 103-141, 107 Stat. 1488.
69. 521 U.S. 507 (1997).
70. City of Boerne v. Flores, 521 U.S. 507, 507 (1997). The opinion held RFRA
unconstitutional in its applications to state and local law, although RFRA is still good
law vis-d-vis the federal government. Boerne, 521 U.S. at 511. See Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).
71. Smith, 494 U.S. at 891 (O'Connor, J., concurring).
72. Boerne, 521 U.S. at 544 (O'Connor, J., dissenting).
CREIGHTON LAW REVIEW
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exercise strict scrutiny on historical evidence concerning the original
meaning of the Free Exercise Clause, especially a lengthy Harvard
Law Review article 73 by First Amendment scholar Professor Michael
74
W. McConnell.
Justice O'Connor's originalist dissent inspired Justice Scalia
(joined by that noted non-originalist, Justice Stevens) to write a concurring opinion 7 5 that countered Justice O'Connor by making the
originalist case in favor of the Smith approach to free exercise. His
opinion, which fills eight pages of United States Reports, is mostly reactive: Justice Scalia primarily countered Justice O'Connor's historical arguments against Smith, rather than creating an originalist case
in favor of Smith. His final conclusion is less than fully confident "The historical evidence marshaled by the dissent cannot fairly be said
to demonstrate the correctness of Smith; but it is more supportive of
that conclusion than destructive of it" 76 - and one wonders why he
made no effort to build an original meaning textualist argument in the
Smith majority opinion itself. Still, there can be no doubt that in his
Boerne concurrence, Justice Scalia made a strong case that the words
of the Free Exercise Clause, as understood at the time they were written, did not necessarily require the idea of religious exemptions from
otherwise-applicable laws. Give him one point for City of Boerne. Justice Thomas, who joined the majority opinion but not Justice Scalia's
concurrence, gets nothing.
1999-
PRIVILEGES OR IMMUNITIES
In Saenz v. Roe, 7 7 the Supreme Court majority (including Justice
Scalia) ruled that it violated the Privileges or Immunities Clause of
the Fourteenth Amendment 78 for California to discourage "welfare
shopping" by limiting new residents, during their first year as Californians, to the levels of welfare benefits that they would have received
had they remained in their prior states of residence. Chief Justice
Rehnquist 7 9 and Justice Thomas 80 both dissented, and Justice
73. Michael W. McConnell, The Origins and Historical Understandingof Free Exercise of Religion, 103 HARv. L. REV. 1409 (1990).
74. Mr. McConnell is now a judge on the United States Court of Appeals for the
Tenth Circuit. See The U.S. Tenth Circuit Court of Appeals: Judges, http/www.ck10.
uscourts.gov/chambers/index.php?id=17 (last visited June 9, 2006).
75. Boerne, 521 U.S. at 537 (Scalia, J., concurring).
76. Id. at 544 (Scalia, J., concurring).
77. 526 U.S. 489 (1999).
78. The Privileges or Immunities Clause states "No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States."
U.S. CONST. amend. XIV, § 1, cl. 2.
79. Saenz v. Roe, 526 U.S. 489, 511 (1999) (Rehnquist, C.J., dissenting).
80. Saenz, 526 U.S. at 521 (Thomas, J., dissenting).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
619
Thomas' dissent called for a complete original-meaning textualist review of the meaning of the Privileges or Immunities Clause:
I join the Chief Justice's dissent. I write separately to address
the majority's conclusion that California has violated "the
right of the newly arrived citizen to the same privileges and
immunities enjoyed by other citizens of the same State." In
my view, the majority attributes a meaning to the Privileges
or Immunities Clause that likely was unintended when the
Fourteenth Amendment was enacted and ratified.
The Privileges or Immunities Clause of the Fourteenth
Amendment provides that "no State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States." Unlike the Equal Protection
and Due Process Clauses, which have assumed near-talismanic status in modern constitutional law, the Court all but
read the Privileges or Immunities Clause out of the Constitution in the Slaughter-House Cases8....
Unlike the majority, I would look to history to ascertain the
original meaning of the Clause. At least in American law, the
phrase (or its close approximation) appears to stem from the
1606 Charter of Virginia, which provided that "all and every
the Persons being our Subjects, which shall dwell and inhabit
within every or any of the said several Colonies . . . shall
HAVE and enjoy all Liberties, Franchises, and Immunities.., as if they had been abiding and born, within this our
Realme of England." Other colonial charters contained similar guarantees. Years later, as tensions between England and
the American Colonies increased, the colonists adopted resolutions reasserting their entitlement to the privileges or immunities of English citizenship.
The colonists' repeated assertions that they maintained the
rights, privileges and immunities of persons "born within the
realm of England" and "natural born" persons suggests that,
at the time of the founding, the terms "privileges" and "immunities" (and their counterparts) were understood to refer to
those fundamental rights and liberties specifically enjoyed by
English citizens, and more broadly, by all persons. Presumably members of the Second Continental Congress so understood these terms when they employed them in the Articles of
Confederation, which guaranteed that "the free inhabitants
of each of these States, paupers, vagabonds and fugitives
from justice excepted, shall be entitled to all privileges and
immunities of free citizens in the several States." The Constitution, which superceded the Articles of Confederation, simi81.
83 U.S. 36 (1873).
620
CREIGHTON LAW REVIEW
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larly guarantees that "the Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the
several States. .. "
[Justice Thomas goes on to discuss early interpretations of
the Article IV Privileges and Immunities Clause, and the impact of those interpretations on the legislators who drafted
the Fourteenth Amendment.]
com[The view of the] Members of the 39th Congress ....
bined with what appears to be the historical understanding of
the Clause's operative terms, supports the inference that, at
the time the Fourteenth Amendment was adopted, people understood that "privileges or immunities of citizens" were fundamental rights, rather than every public benefit established
by positive law. Accordingly, the majority's conclusion - that
a State violates the Privileges or Immunities Clause when it
"discriminates" against citizens who have been domiciled in
the State for less than a year in the distribution of welfare
benefit - appears contrary to the original understanding and
is dubious at best.
As the Chief Justice points out, it comes as quite a surprise
that the majority relies on the Privileges or Immunities
Clause at all in this case .... Although the majority appears
to breathe new life into the Clause today, it fails to address
its historical underpinnings or its place in our constitutional
jurisprudence. Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part
to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an
appropriate case. Before invoking the Clause, however, we
should endeavor to understand what the Framers of the
Fourteenth Amendment thought that it meant. We should
also consider whether the Clause should displace, rather than
augment, portions of our equal protection and substantive
due process jurisprudence. The majority's failure to consider
these important questions raises the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new rights, limited solely by the
"predilections of those who happen at the time to be Members
82
of this Court."
One big originalist point to Justice Thomas.
82. Saenz, 526 U.S. at 521-28 (Thomas, J., dissenting) (internal citations and footnotes omitted).
2007]
2000-
THE REAL CONSTITUTIONAL ORIGINALIST
621
CRIMINAL PROCEDURE
In Portuondo v. Agard,8 3 the Supreme Court considered a case in
which a criminal defendant had testified at trial, and then the prosecutor, in closing argument, told the jury that because the defendant
had been in court throughout the trial, he had the opportunity to tailor his testimony (presumably falsely) to make it more believable in
light of other evidence.
Respondent contends that the prosecutor's comments on his
presence and on the ability to fabricate that it afforded him
unlawfully burdened his Sixth Amendment right to be present at trial and to be confronted with the witnesses against
him, and his Fifth and Sixth Amendment rights to testify on
his own behalf. Attaching the cost of impeachment to the
ex8 4
ercise of these rights was, he asserts, unconstitutional.
Justice Scalia wrote the majority opinion (in which Justice
Thomas joined) and began his analysis by asserting that the meaning
of the constitutional text, when either the Bill of Rights or the Fourteenth Amendment was ratified, would not have supported this understanding of the Fifth or Sixth Amendments:
As an initial matter, respondent's claims have no historical
foundation, neither in 1791, when the Bill of Rights was
adopted, nor in 1868 when, according to our jurisprudence,
the Fourteenth Amendment extended the strictures of the
Fifth and Sixth Amendments to the States. The process by
which criminal defendants were brought to justice in 1791
largely obviated the need for comments of the type the prosecutor made here. Defendants routinely were asked (and
agreed) to provide a pretrial statement to a justice of the
peace detailing the events in dispute. If their story at trial where they typically spoke and conducted their defense personally, without counsel - differed from their pretrial statement, the contradiction could be noted. Moreover, what they
said at trial was not considered to be evidence, since they
were disqualified from testifying under oath. s 5
Justice Scalia went on to build his argument around the Court's
case law, and his focus was not very specifically on the words of the
constitutional text, but he at least began with a reference to the document's original meaning, so we will give one point to him and half a
point to Justice Thomas, who joined the opinion.
83.
84.
85.
529 U.S. 61 (2000).
Portuondo v. Agard, 529 U.S. 61, 65 (2000) (internal citations omitted).
Portuondo, 529 U.S. at 65-66 (internal citations omitted).
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FIFTH AMENDMENT
86
Here is Justice Thomas' description of United States v. Hubbell,
as given at the beginning of the concurring opinion that he wrote and
Justice Scalia joined:
Our decision today involves the application of the act-of-production doctrine, which provides that persons compelled to
turn over incriminating papers or other physical evidence
pursuant to a subpoena duces tecum or a summons may invoke the Fifth Amendment privilege against self-incrimination as a bar to production only where the act of producing
the evidence would contain "testimonial" features. I join the
opinion of the Court because it properly applies this doctrine,
but I write separately to note that this doctrine may be inconsistent with the original meaning of the Fifth Amendment's
Self-Incrimination Clause. A substantial body of evidence
suggests that the Fifth Amendment privilege protects against
the compelled production not just of incriminating testimony,
but of any incriminating evidence. In a future case, I would be
the scope and meaning of the Self-Inwilling to reconsider
87
crimination Clause.
Justice Thomas went on to explore the possibility that the Court's current Fifth Amendment doctrines are not consistent with the Constitution's original meaning - but all in the context of perhaps raising the
issue in some other case. At the end of the day, Justice Thomas (and
Justice Scalia, who joined his concurring opinion) simply concurred
with the majority's non-original interpretation. Hubbell was an opportunity missed; no point to either player.
2000-
COMMERCE CLAUSE
United States v. Morrison88 replayed the Court's 5-4 division over
the commerce power from United States v. Lopez 8 9 five years earlier.
Once again, the majority held that a federal statute, this time the Violence Against Women Act, exceeded the powers of Congress under the
Commerce Clause. Once again, Justice Thomas wrote a concurring
opinion, reinforcing his Lopez arguments for a return to the original
textual meaning of the commerce power:
The majority opinion correctly applies our decision in United
States v. Lopez, and I join it in full. I write separately only to
express my view that the very notion of a "substantial effects"
test under the Commerce Clause is inconsistent with the orig86.
87.
88.
89.
530 U.S. 27 (2000).
United States v. Hubbell, 530 U.S. 27, 49 (2000) (Thomas, J., concurring).
529 U.S. 598 (2000).
See supra notes 35-42 and accompanying text.
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
623
inal understanding of Congress' powers and with this Court's
early Commerce Clause cases. By continuing to apply this
rootless and malleable standard, however circumscribed, the
Court has encouraged the Federal Government to persist in
its view that the Commerce Clause has virtually no limits.
Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original
understanding, we will continue to see Congress appropriating state police powers under the guise of regulating
9
commerce. 0
One more point to Justice Thomas for keeping up the argument
for an original understanding of the Commerce Clause. Justice Scalia
neither wrote separately nor joined the Justice Thomas opinion.
2001-
DELEGATION OF LEGISLATIVE POWER
In Whitman v.American Trucking Ass'ns, 9 1 Justice Scalia wrote
the majority opinion holding that Congress did not unconstitutionally
delegate its legislative authority9 2 to the Environmental Protection
Agency when it enacted the Clean Air Act, which authorized the EPA
to promulgate and enforce regulations with no more guidance than the
standard, "requisite to protect public health." Justice Scalia's majority opinion resolved the delegation question by noting that "the scope
of discretion §109(b)(1) allows is in fact well within the outer limits of
our nondelegation precedents." 9 3 He made no mention of original
meaning principles, but treated the issue as an application of case
law.
Justice Thomas concurred in the majority opinion. Because the
question of original constitutional meaning had not been presented by
the parties, he joined Justice Scalia's opinion. However, he took the
occasion to question whether prior case law on the nondelegation doctrine was consistent with the Constitution's text:
I agree with the majority that §109's directive to the agency is
no less an "intelligible principle" than a host of other directives that we have approved. I also agree that the Court of
Appeals' remand to the agency to make its own corrective interpretation does not accord with our understanding of the
delegation issue. I write separately, however, to express my
concern that there may nevertheless be a genuine constitu90. United States v. Morrison, 529 U.S. 598, 627 (2000) (Thomas, J., concurring)
(internal citation omitted).
91. 531 U.S. 457 (2001).
92. U.S. CONST. art. I, § 1 ("All legislative powers herein granted shall be vested in
a Congress of the United States, which shall consist of a Senate and House of
Representatives.").
93. Whitman v. Am.Trucking Ass'ns, 531 U.S. 457, 474 (2001).
CREIGHTON LAW REVIEW
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tional problem with §109, a problem which the parties did not
address.
The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod
to the text of the Constitution. Although this Court since
1928 has treated the "intelligible principle" requirement as
the only constitutional limit on congressional grants of power
to administrative agencies, the Constitution does not speak of
"intelligible principles." Rather, it speaks in much simpler
terms: "All legislative Powers herein granted shall be vested
in a Congress." U.S. Const., Art. 1, § 1 (emphasis added). I am
not convinced that the intelligible principle doctrine serves to
prevent all cessions of legislative power. I believe that there
are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the
decision to be called anything other than "legislative."
As it is, none of the parties to these cases has examined the
text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our
our Foundelegation jurisprudence has strayed too far9from
4
ders' understanding of separation of powers.
This point clearly belongs to Justice Thomas. He made a strong
statement advocating a textualist approach to Article I, §1, which Justice Scalia chose not to join.
2002-
DEATH PENALTY
In Atkins v. Virginia,95 the majority of the Supreme Court held
that it violated the Eighth Amendment's ban on "cruel and unusual"
punishments for a state to allow the execution of a mentally retarded
criminal. Justice Scalia, joined by Justice Thomas and Chief Justice
Rehnquist, dissented. Justice Scalia makes the good beginning of an
originalist argument by noting that execution of a mentally deficient
person (short of insanity) would have been considered quite normal and clearly neither cruel nor unusual - at the time the Eighth Amendment was added to the Constitution:
The Court makes no pretense that execution of the mildly
mentally retarded would have been considered "cruel and unusual" in 1791. Only the severely or profoundly mentally retarded, commonly known as "idiots," enjoyed any special
status under the law at that time. They, like lunatics, suf94.
Whitman, 531 U.S. at 486-87 (Thomas, J., concurring) (internal citations
omitted).
95.
536 U.S. 304 (2002).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
625
fered a "deficiency in will" rendering them unable to tell right
from wrong. Due to their incompetence, idiots were "excuse [d]
from the guilt, and of course from the punishment, of any
criminal action committed under such deprivation of the
senses." Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them
from "go[ing] loose, to the terror of the king's subjects." Mentally retarded offenders with less severe impairments - those
who were not "idiots" - suffered criminal 96prosecution and
punishment, including capital punishment.
Unfortunately, instead of sticking to originalist guns at this
point, 9 7 Justice Scalia drops into an argument over whether execution
of the retarded violates the "evolving standards of decency that mark
the progress of a maturing society."9 8 Rather than a principled stand
on original meaning, he relies primarily on a discussion of contemporary societal consensus. 99 Originalism compromised; another opportunity missed. No point to either player.
2002-
SOVEREIGN IMMUNITY
In Federal Maritime Commission v. South Carolina State Ports
Authority,10 0 the Supreme Court considered the question whether the
sovereign immunity of the states from private lawsuits, sometimes referred to as "Eleventh Amendment" immunity, 1° 1 also applies to immunize states from administrative proceedings in front of agencies
such as the Federal Maritime Commission. Justice Thomas wrote the
Court's majority opinion, joined by the Chief Justice and Justices
Scalia, O'Connor, and Kennedy.
Justice Thomas began his analysis by looking "first to evidence of
the original understanding of the Constitution," but he found a "relatively barren historical record, from which the parties draw radically
different conclusions." 10 2 Lacking direct conclusive evidence as to
original meaning, he still pursued an originalist course: "[W~e must
examine FMC adjudications to determine whether they are the type of
proceedings from which the Framers would have thought the States
96. Atkins v. Virginia, 536 U.S. 304, 340-41 (2002) (Scalia, J., dissenting) (internal
citations omitted).
97. Or even, perhaps, arguing that in their original meanings, "cruel and unusual"
were dynamic terms that were chosen with full knowledge that they would change over
time.
98. Atkins, 536 U.S. at 341 (Scalia, J., dissenting) (citations omitted).
99. Id. at 342-43 (Scalia, J., dissenting). Justice Scalia argues rather convincingly
that the majority opinion incorrectly analyzes that contemporary consensus, but that is
not the point of this Article. See id. at 341-48 (Scalia, J., dissenting).
100. 535 U.S. 743 (2002).
101. See Seminole Tribe v. Florida, 517 U.S. 44 (1996).
102. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 754-55 (2002).
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possessed immunity when they agreed to enter the Union." The Court
examined the nature of FMC proceedings and determined that they
are sufficiently similar to courtroom litigation to justify the conclusion
that the original meaning of state sovereign immunity under the Constitution would have extended to them.
This counts as originalist methodology - probably the best available on the facts - so we will give one point to Justice Thomas for writing the opinion and one half point to Justice Scalia for joining it.
2002-
ESTABLISHMENT CLAUSE
Also in 2002, the Supreme Court decided the case of Zelman v.
10 3
Simmons-Harris,
in which it upheld, against an Establishment
Clause challenge, the constitutionality of a voucher program permitting low-income families to take government funding and apply it in
sending their children to private secular or religious schools. Justice
Thomas added a concurring opinion, joined by no other Justice, in
which he began to develop a theme to which he would return in later
cases: that under an originalist understanding, the Establishment
Clause applies only to the federal government and is not susceptible to
"incorporation" against the states through the Fourteenth
Amendment:
The dissents and respondents wish to invoke the Establishment Clause of the First Amendment, as incorporated
through the Fourteenth, to constrain a State's neutral efforts
to provide greater educational opportunity for underprivileged minority students. Today's decision properly upholds
the program as constitutional, and I join it in full.
This Court has often considered whether efforts to provide
children with the best educational resources conflict with constitutional limitations. Attempts to provide aid to religious
schools or to allow some degree of religious involvement in
public schools have generated significant controversy and litigation as States try to navigate the line between the secular
and the religious in education. We have recently decided several cases challenging federal aid programs that include religious schools. To determine whether a federal program
survives scrutiny under the Establishment Clause, we have
considered whether it has a secular purpose and whether it
has the primary effect of advancing or inhibiting religion. I
agree with the Court that Ohio's program easily passes muster under our stringent test, but, as a matter of first principles, I question whether this test should be applied to the
States.
103.
536 U.S. 639 (2002).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
The Establishment Clause of the First Amendment states
that "Congress shall make no law respecting an establishment of religion." On its face, this provision places no limit on
the States with regard to religion. The Establishment Clause
originally protected States, and by extension their citizens,
from the imposition of an established religion by the Federal
Government. Whether and how this Clause should constrain
state action under the Fourteenth Amendment is a more difficult question.
The Fourteenth Amendment fundamentally restructured the
relationship between individuals and the States and ensured
that States would not deprive citizens of liberty without due
process of law. It guarantees citizenship to all individuals
born or naturalized in the United States and provides that
"no State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws." As
Justice Harlan noted, the Fourteenth Amendment "added
greatly to the dignity and glory of American citizenship, and
to the security of personal liberty." When rights are incorporated against the States through the Fourteenth Amendment
they should advance, not constrain, individual liberty.
Consequently, in the context of the Establishment Clause, it
may well be that state action should be evaluated on different
terms than similar action by the Federal Government.
"States, while bound to observe strict neutrality, should be
freer to experiment with involvement [in religion] - on a neutral basis - than the Federal Government." Thus, while the
Federal Government may "make no law respecting an establishment of religion," the States may pass laws that include
or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest. By considering the particular religious liberty
right alleged to be invaded by a State, federal courts can
strike a proper balance between the demands of the Fourteenth Amendment on the one hand and the federalism prerogatives of States on the other.
Whatever the textual and historical merits of incorporating
the Establishment Clause, I can accept that the Fourteenth
Amendment protects religious liberty rights. But I cannot accept its use to oppose neutral programs of school choice
through the incorporation of the Establishment Clause.
There would be a tragic irony in converting the Fourteenth
CREIGHTON LAW REVIEW
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Amendment's guarantee of individual liberty
into a prohibi10 4
tion on the exercise of educational choice.
Pointing out the illogic of "incorporating" the Establishment
Clause - a federalism provision written in part to protect state religious establishments 10 5 - against the states is a clear example of textualism. Justice Thomas earns one unanswered point.
2003-
RIGHT OF "PRIVACY"
Lawrence v. Texas 106 expanded the modern "right to privacy"
form of substantive due process that was created by the Court in cases
such as Griswold v. Connecticut,10 7 Roe v. Wade,' 0 8 and Planned
Parenthood of Southeastern Pennsylvania v. Casey.1 09 The privacy
cases, of course, are the antithesis of original-meaning textualism;
they develop a body of substantive rights neither mentioned in the
text of the Constitution nor acknowledged throughout our nation's history, culminating in Casey's ringing (if unsupportable) proclamation
that "[alt the heart of liberty [protected by the Fourteenth Amendment] is the right to define one's own concept of existence, of meaning,
of the universe, and of the mystery of human life." 110 This is judicial
law-making at its finest, not even pretending to be connected to constitutional text or historically-accepted meaning.
Lawrence continued this line of cases, in a confusing opinion holding unconstitutional a criminal statute directed at homosexual sodomy. Justices Scalia and Thomas both dissented. Justice Scalia's
fairly long dissent"' was primarily directed at the rather easy task of
pointing out logical holes in the majority opinion. 112 However, he
made at least tangential reference to the fact that this "right to privacy" was a judicial creation with no grounding in the original meaning of the Constitution's text:
[The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than
104. Zelman v. Simmons-Harris, 536 U.S. 639, 676-80 (Thomas, J., concurring) (internal citations omitted).
105. See Justice Thomas' concurrence in Elk Grove Unified School District v.
Newdow, infra at note 124.
106. 539 U.S. 558 (2003).
107. 381 U.S. 479 (1965).
108. 410 U.S. 113 (1973).
109. 505 U.S. 833 (1992).
110. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
111. Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting).
112. Justice Scalia pointed out the inconsistent use of stare decisis in Casey and
Lawrence. Lawrence, 539 U.S. at 586-92 (Scalia, J., dissenting). Justice Scalia also
opined on the irrelevance of foreign legal sources in cases involving American constitutional law. Id. at 598 (Scalia, J., dissenting).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
629
60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion
repeatedly makes that claim. ("The liberty protected by the
Constitution allows homosexual persons the right to make
this choice"); ("These matters . . .are central to the liberty
protected by the Fourteenth Amendment"); ("Their right to
liberty under the Due Process Clause gives them the full
right to engage in their conduct without intervention of the
government"). The Fourteenth Amendment expressly allows
States to deprive their citizens of "liberty," so long as "due
process of law" is provided: "No state shall . . .deprive any
person of life, liberty, or property, without due process of
law."113
Justice Thomas joined Justice Scalia's dissent. He also wrote a
dissenting opinion of his own, mostly to say that as a legislator he
would not support an "uncommonly silly" law criminalizing private,
adult, consensual sexual practices. He too, however, worked in the
notion that the "right to privacy" is contrary to the Constitution's text:
I join Justice Scalia's dissenting opinion. I write separately to
note that the law before the Court today "is .. .uncommonly
silly." If I were a member of the Texas Legislature, I would
vote to repeal it. Punishing someone for expressing his sexual
preference through noncommercial consensual conduct with
another adult does not appear to be a worthy way to expend
valuable law enforcement resources.
Notwithstanding this, I recognize that as a Member of this
Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably
to the Constitution and laws of the United States.'" And, just
like Justice Stewart, I "can find [neither in the Bill of Rights
nor any other part of the Constitution a] general right of privacy," or as the Court terms it today, the "liberty of the per11 4
son both in its spatial and more transcendent dimensions."
The Lawrence majority opinion left so many holes that it is hard
to criticize the dissenters for attacking them rather than focusing on
textual questions - in fact, since the text of the Constitution says absolutely nothing about the matters at issue in Lawrence, it would probably be hard to find very many textual points to make. We will give one
point to each Justice for the attempt.
113.
114.
Id. at 592 (Scalia, J., dissenting) (internal citations omitted).
Id. at 605-06 (Thomas, J., dissenting) (internal citations omitted).
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[Vol. 40
CRIMINAL PROCEDURE AND WAR POWERS
Hamdi v. Rumsfeld 1 15 was a fascinating case for those of us interested in the originalist leanings of Justices Scalia and Thomas - fascinating because each of our subjects wrote a dissenting opinion with
originalist underpinnings, but they came to the opposite result!
At issue in Hamdi was whether the federal government could
hold incarcerated, without the filing of criminal charges and without
all of the criminal procedure protections contained in the Bill of
Rights, an American citizen captured as an enemy combatant in Afghanistan. The Court plurality concluded that although Congress had
authorized the detention of combatants in the narrow circumstances
alleged in the case, due process required that a citizen held in the
United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral
decision-maker.
Justice Scalia dissented. 1 16 He identified the key question as
"whether there is a different, special procedure for imprisonment of a
citizen accused of wrongdoing by aiding the enemy in wartime."117 He
then explored whether, under the original meaning of the Bill of
Rights as demonstrated by accepted practices in the Founding era, a
citizen in Hamdi's position would have been entitled to the right of
habeas corpus and all other criminal procedure protections of the Bill
of Rights:
Justice O'Connor, writing for a plurality of this Court, asserts
that captured enemy combatants (other than those suspected
of war crimes) have traditionally been detained until the cessation of hostilities and then released. That is probably an
accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens,
however, has been quite different. Citizens aiding the enemy
have been treated as traitors subject to the criminal process.
As early as 1350, England's Statute of Treasons made it a
crime to "levy War against our Lord the King in his Realm, or
be adherent to the King's Enemies in his Realm, giving to
them Aid and Comfort, in the Realm, or elsewhere."
Subjects accused of levying war against the King were routinely prosecuted for treason. The Founders inherited the unagainst the
derstanding that a citizen's levying war
118
Government was to be punished criminally.
115.
116.
117.
118.
542 U.S. 507 (2004).
Hamdi v. Rumsfeld, 542 U.S. 507, 554 (2004) (Scalia, J., dissenting).
Hamdi, 542 U.S. at 558 (Scalia, J., dissenting).
Id. at 558-60 (Scalia, J., dissenting).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
631
Justice Scalia concluded that under an originalist understanding
of the Constitution, Hamdi should be entitled to the full protections of
a criminal defendant, including the right of habeas corpus.
Justice Thomas also dissented, but took an opposite position. For
him, the key question was whether the President, in a time of military
conflict, held sufficiently broad war powers under the Constitution to
authorize the incarceration of someone in Hamdi's situation. His
opinion cited case law and other reasons why this was true, but it also
examined the original meaning of the constitutional text:
[Blecause the Founders understood that they could not foresee the myriad potential threats to national security that
might later arise, they chose to create a Federal Government
that necessarily possesses sufficient power to handle any
threat to the security of the Nation. The power to protect the
Nation "ought to exist without limitation . .. [b]ecause it is
impossible to foresee or define the extent and variety of national exigencies, or the correspondentextent & variety of the
means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and
for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed." The
Founders intended that the President have primary responsibility - along with the necessary power - to protect the national security and to conduct the Nation's foreign relations.
They did so principally because the structural advantages of
a unitary Executive are essential in these domains. "Energy
in the executive is a leading character in the definition of
good government. It is essential to the protection of the community against foreign attacks." The principle "ingredien[t]"
for "energy in the executive" is "unity." This is because
"[diecision, activity, secrecy, and dispatch will generally
characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number."119
Justice Thomas believed that the Constitution's original meaning
clearly gave the President broad war powers that included the right to
hold enemy combatants like Hamdi without any access to judicial
review.
In Hamdi, we see the two leading originalists on the Supreme
Court coming to opposite conclusions on what the Constitution has to
say about incarceration of American citizens in time of war. The case
certainly stands for the proposition that originalism is not easy - even
those who agree that the proper interpretive task is not to let the document's meaning "live" and evolve, but rather to ascertain the original
119. Id. at 580-81 (Thomas, J., dissenting) (citations to The Federalistomitted).
632
CREIGHTON LAW REVIEW
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meaning of the text, may not always be able to agree on the content of
that original meaning. Still, Justices Scalia and Thomas each earn a
point for their Hamdi dissents.
2004-
ESTABLISHMENT CLAUSE
Elk Grove Unified School District v. Newdow 120 was a high-profile case challenging the constitutionality, under the Establishment
Clause, of a public school board policy requiring students to recite the
Pledge of Allegiance (and especially the words, "one nation under
God"). 12 1 The Court majority dismissed the federal lawsuit as nonjusticiable because the plaintiff, the noncustodial parent of a child in the
school, 1 22 lacked standing to bring the suit. Justice Scalia took no
part in deciding the case because he had earlier made public comments indicating that he held an opinion on the merits of the issue. 12 3
Justice Thomas concurred in the result 124 because he believed
that Newdow had standing to sue, but that the Establishment Clause
claim should have been decided on its merits with a holding that government endorsement of the phrase "under God" is not unconstitutional. Justice Thomas continued the textualist challenge to
contemporary Establishment Clause thinking that he had begun two
years earlier in Zelman v. Simmons-Harris,125 arguing for a complete
rethinking of the Court's religion jurisprudence:
Because I agree with the Chief Justice that respondent
Newdow has standing, I would take this opportunity to begin
the process of rethinking the Establishment Clause. I would
acknowledge that the Establishment Clause is a federalism
provision, which, for this reason, resists incorporation. Moreover, as I will explain, the Pledge policy is not implicated by
any sensible incorporation of the Establishment Clause,
which would probably cover little more than the Free Exercise Clause....
The Establishment Clause provides that "Congress shall
make no law respecting an establishment of religion." As a
textual matter, this Clause probably prohibits Congress from
establishing a national religion. Perhaps more importantly,
120. 542 U.S. 1 (2004).
121. Students with conscientious objections were permitted to opt out of reciting the
Pledge. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 8 & n.2 (2004).
122. Both the child and her mother, who had legal custody and the final say in educational and religious training decisions, had no objections to recitation of the Pledge.
Elk Grove, 542 U.S. at 9-10.
123. See Cheney v. U.S. Dist. Court, 541 U.S. 913, 916 (2004) (mem. of Justice
Scalia).
124. Elk Grove, 542 U.S. at 45 (Thomas, J., concurring).
125. See supra notes 103-05 and accompanying text.
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
the Clause made clear that Congress could not interfere with
state establishments, notwithstanding any argument that
could be made based on Congress' power under the Necessary
and Proper Clause.
Nothing in the text of the Clause suggests that it reaches any
further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause
plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable
Congress from "abridging [particular] freedom[s]." This textual analysis is consistent with the prevailing view that the
Constitution left religion to the States. History also supports
this understanding: At the founding, at least six States had
established religions....
Quite simply, the Establishment Clause is best understood as
a federalism provision - it protects state establishments from
federal interference but does not protect any individual right.
These two features independently make incorporation of the
Clause difficult to understand....
But even assuming that the Establishment Clause precludes
the Federal Government from establishing a national religion, it does not follow that the Clause created or protects any
individual right. For the reasons discussed above, it is more
likely that States and only States were the direct beneficiaries. Moreover, incorporation of this putative individual
right leads to a peculiar outcome: It would prohibit precisely
what the Establishment Clause was intended to protect state establishments of religion. Nevertheless, the potential
right against federal establishments is the only candidate for
incorporation.
I would welcome the opportunity to consider more fully the
difficult questions whether and how the Establishment
Clause applies against the States. One observation suffices
for now: As strange as it sounds, an incorporated Establishment Clause prohibits exactly what the Establishment
Clause protected - state practices that pertain to "an establishment of religion." At the very least, the burden of persuasion rests with anyone who claims that the term took on a
different meaning upon incorporation. We must therefore determine whether the Pledge policy pertains to an "establishment of religion."
The traditional "establishments of religion" to which the Establishment Clause is addressed necessarily involve actual
633
CREIGHTON LAW REVIEW
legal coercion
dissent 12 6].
[citing Justice
Scalia's Lee
[Vol. 40
v. Weisman
Even if "establishment" had a broader definition, one that included support for religion generally through taxation, the element of legal coercion (by the State) would still be present.
It is also conceivable that a government could "establish" a
religion by imbuing it with governmental authority, or by
"delegat[ing] its civic authority to a group chosen according to
a religious criterion." A religious organization that carries
some measure of the authority of the State begins to look like
a traditional "religious establishment," at least when that authority can be used coercively.
It is difficult to see how government practices that have nothing to do with creating or maintaining the sort of coercive
state establishment described above implicate the possible
of being free from coercive state
liberty interest
1 27
establishments.
One point to Justice Thomas.
2005-
DEATH PENALTY
Roper v. Simmons 128 was a death-penalty case very similar to Atkins. 12 9 This time the question was whether the Eighth Amendment's
ban on "cruel and unusual" punishments prohibits the execution of
criminals who were under age eighteen at the time of the crime, and
once again the Supreme Court overruled earlier precedents to find
such executions unconstitutional. Once again, Justice Scalia wrote a
sizzling dissent joined by Justice Thomas and Chief Justice Rehnquist, 130 and once again the dissent spent considerable ink debunking
the majority's finding of a developing national consensus. This time,
however, before entering into an analysis of contemporary standards,
the dissenters made it crystal clear that they disagreed with the very
act of performing such an analysis. They stated clearly that original
meaning textualism ought to provide a complete answer to the constitutional question:
In urging approval of a constitution that gave life-tenured
judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of
New York that there was little risk in this, since "[t]he judici126. See supra note 24.
127. Elk Grove, 542 U.S. at 45-53 (Thomas, J., concurring) (internal citations
omitted).
128. 543 U.S. 551 (2005).
129. See supra notes 95-99 and accompanying text.
130. Roper v. Simmons, 543 U.S. 551, 607 (Scalia, J., dissenting).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
ary .
. . ha[s] neither FORCE nor WILL but merely judgment." But Hamilton had in mind a traditional judiciary,
"bound down by strict rules and precedents which serve to
define and point out their duty in every particular case that
comes before them." Bound down, indeed. What a mockery
today's opinion makes of Hamilton's expectation, announcing
the Court's conclusion that the meaning of our Constitution
has changed over the past 15 years - not, mind you, that this
Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of
the Eighth Amendment, but to "the evolving standards of decency" of our national society. It then finds, on the flimsiest of
grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly
exists. Worse still, the Court says in so many words that what
our people's laws say about the issue does not, in the last
analysis, matter: "[I]n the end our own judgment will be
brought to bear on the question of the acceptability of the
death penalty under the Eighth Amendment." The Court
thus proclaims itself sole arbiter of our Nation's moral standards - and in the course of discharging that awesome responsibility purports to take guidance from the views of
foreign courts and legislatures. Because I do not believe that
the meaning of our Eighth Amendment, any more than the
meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this
Court and like-minded foreigners, I dissent.
In determining that capital punishment of offenders who
committed murder before age 18 is "cruel and unusual" under
the Eighth Amendment, the Court first considers, in accordance with our modern (though in my view mistaken) jurisprudence, whether there is a "national consensus," that laws
allowing such executions contravene our modern "standards
of decency ....
n.1 The Court ignores entirely the threshold inquiry in
determining whether a particular punishment complies
with the Eighth Amendment: whether it is one of the
"modes or acts of punishment that had been considered
cruel and unusual at the time that the Bill of Rights was
adopted." As we have noted in prior cases, the evidence is
unusually clear that the Eighth Amendment was not
originally understood to prohibit capital punishment for
16- and 17-year-old offenders. At the time the Eighth
Amendment was adopted, the death penalty could theoretically be imposed for the crime of a 7-year-old, though
635
636
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[Vol. 40
there was a rebuttable presumption of incapacity to commit a capital (or other) felony until the age of 14.131
The dissenters reinforced their commitment to original-meaning
textualism later in the opinion:
The Court's special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion. It is
of course true that we share a common history with the
United Kingdom, and that we often consult English sources
when asked to discern the meaning of a constitutional text
written against the backdrop of 18th-century English law and
legal thought. If we applied that approach today, our task
would be an easy one. As we explained in Harmelin v. Michigan, the "Cruell and Unusuall Punishments" provision of the
English Declaration of Rights was originally meant to describe those punishments "out of [the Judges'] Power" - that
is, those punishments that were not authorized by common
law or statute, but that were nonetheless administered by the
Crown or the Crown's judges. Under that reasoning, the
death penalty for under-18 offenders would easily survive
this challenge. The Court has, however - I think wrongly long rejected a purely originalist approach to our Eighth
Amendment, and that is certainly not the approach the Court
takes today. Instead, the Court undertakes the majestic task
prescribing) our Nation's current
of determining (and thereby
13 2
standards of decency.
And again:
In a system based upon constitutional and statutory text
democratically adopted, the concept of "law" ordinarily signifies that particular words have a fixed meaning. Such law
does not change, and this Court's pronouncement of it therefore remains authoritative until (confessing our prior error)
we overrule. The Court has purported to make of the Eighth
Amendment, however, a mirror of the passing and changing
sentiment of American society regarding penology. The lower
courts can look into that mirror as well as we can; and what
we saw 15 years ago bears no necessary relationship to what
they see today. Since they are not looking at the same text,
why should our earlier decision conbut at a different scene,
133
trol their judgment?
The Roper dissent was an excellent piece of originalist jurisprudence. Give one point to Justice Scalia for writing it and half a point
to Justice Thomas for joining it.
131.
132.
133.
Roper, 543 U.S. at 607-09 (Scalia, J., dissenting) (internal citations omitted).
Id. at 626 (Scalia, J., dissenting) (internal citations omitted).
Id. at 629 (Scalia, J., dissenting).
2007]
2005-
THE REAL CONSTITUTIONAL ORIGINALIST
637
ESTABLISHMENT CLAUSE
In Cutter v. Wilkinson, 134 a unanimous Supreme Court upheld,
against an Establishment Clause challenge, the constitutionality of
the Religious Land Use and Institutionalized Persons Act of 2000135
("RLUIPA"), a successor statute to RFRA. 136 Justice Thomas added a
concurring opinion, 137 not joined by any other Justice, in which he
once again called for an originalist reexamination of the Court's Establishment Clause jurisprudence:
I join the opinion of the Court. I agree with the Court that
[RLUIPA] is constitutional under our modem Establishment
Clause case law. I write to explain why a proper historical
understanding of the Clause as a federalism provision leads
to the same conclusion.
The Establishment Clause provides that "Congress shall
make no law respecting an establishment of religion." As I
have explained, an important function of the Clause was to
"ma[ke] clear that Congress could not interfere with state establishments." The Clause, then, "is best understood as a federalism provision" that "protects state establishments from
federal interference." Ohio contends that this federalism understanding of the Clause prevents federal oversight of state
choices within the "'play in the joints'" between the Free Exercise and Establishment Clauses. In other words, Ohio asserts that the Clause protects the States from federal
interference with otherwise constitutionally permissible
choices regarding religious policy. In Ohio's view, RLUIPA intrudes on such state policy choices and hence violates the
Clause.
Ohio's vision of the range of protected state authority overreads the Clause. Ohio and its amici contend that, even
though "States can no longer establish preferred churches"
because the Clause has been incorporated against the States
through the Fourteenth Amendment, "Congress is as unable
as ever to contravene constitutionally permissible State
choices regarding religious policy." That is not what the
Clause says. The Clause prohibits Congress from enacting
legislation "respecting an establishment of religion"; it does
not prohibit Congress from enacting legislation "respecting
religion" or "taking cognizance of religion." At the founding,
establishment involved "coercion of religious orthodoxy and of
financial support by force of law and threat of penalty," in134.
135.
136.
137.
544 U.S. 709 (2005).
114 Stat. 804, 42 U.S.C. § 2000cc-1(a)(1)-(2).
See supra notes 63-69 and accompanying text.
Cutter v. Wilkinson, 544 U.S. 709, 726 (2005) (Thomas, J., concurring).
CREIGHTON LAW REVIEW
[Vol. 40
cluding "governmental preferences for particular religious
faiths." In other words, establishment at the founding involved, for example, mandatory observance or mandatory
payment of taxes supporting ministers. To proscribe Congress from making laws "respecting an establishment of religion," therefore, was to forbid legislation respecting coercive
state establishments, not to preclude Congress from legislating on religion generally....
In short, the view that the Establishment Clause precludes
Congress from legislating respecting religion lacks historical
provenance, at least based on the history of which I am
aware. Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress
need not observe strict separation between church and state,
or steer clear of the subject of religion. It need only refrain
from making laws "respecting an establishment of religion";
it must not interfere with a state establishment of religion.
For example, Congress presumably could not require a State
to establish a religion any more than it could preclude a State
from establishing a religion.
On its face - the relevant inquiry, as this is a facial challenge
- RLUIPA is not a law "respecting an establishment of religion. . . ." [It] does not prohibit or interfere with state establishments, since no State has established (or constitutionally
could establish, given an incorporated Clause) a religion. Nor
does the provision require a State to establish a religion: It
does not force a State to coerce religious observance or payment of taxes supporting clergy, or require a State to prefer
one religious sect over another. It is a law respecting religion,
but not one respecting an establishment of religion.
In addition, RLUIPA's text applies to all laws passed by state
and local governments, including "rule[s] of general applicability," whether or not they concern an establishment of religion. State and local governments obviously have many laws
that have nothing to do with religion, let alone establishments thereof. Numerous applications of RLUIPA therefore
and a facial
do not contravene the Establishment Clause,
138
challenge based on the Clause must fail.
One more point to Justice Thomas for taking another lonesome
stand for original meaning.
138. Cutter, 544 U.S. at 726-32 (Thomas, J., concurring) (internal citations and footnotes omitted).
2007]
2005-
THE REAL CONSTITUTIONAL ORIGINALIST
639
ESTABLISHMENT CLAUSE
The Court's most recent interpretation of the Establishment
Clause came in 2005's twin "Ten Commandments" cases, Van Orden v.
Perry1 39 and McCreary County v. ACLU. 140 These companion decisions, taken together, did nothing to clarify anyone's understanding of
religious freedom generally or the Establishment Clause in particular.
14 1
When the two cases came down, due to Justice Breyer's flip-flop,
two relatively small and inconspicuous displays of the Ten Commandments in Kentucky county courthouses were found to violate the Establishment Clause, while a much larger and more dramatic Ten
Commandments display on the Texas State Capitol grounds was ruled
constitutional. Both Justices Scalia and Thomas wrote to express
their views that none of these displays violated the Constitution, and
both relied on strong originalist principles. In Van Orden, Justice
Scalia wrote a short originalist concurrence:
I join the opinion of the Chief Justice because I think it accurately reflects our current Establishment Clause jurisprudence - or at least the Establishment Clause jurisprudence
we currently apply some of the time. I would prefer to reach
the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation's past and present
practices, and that can be consistently applied - the central
relevant feature of which is that there is nothing unconstitutional in a State's favoring religion generally, honoring God
through public prayer and acknowledgment, or, in a nonp142
roselytizing manner, venerating the Ten Commandments.
Justice Thomas added a longer concurring opinion making textualist
arguments, including his previously-expressed view that the Establishment Clause should not be understood as having been "incorporated" against the states by the Due Process Clause of the Fourteenth
Amendment:
This case would be easy if the Court were willing to abandon
the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original
meaning of the Clause. I have previously suggested that the
Clause's text and history "resis[t] incorporation" against the
States. If the Establishment Clause does not restrain the
States, then it has no application here, where only state action is at issue.
139.
140.
141.
142.
545 U.S. 677 (2005).
545 U.S. 844 (2005).
See Van Orden v. Perry, 545 U.S. 677, 698 (Breyer, J., concurring).
Van Orden, 545 U.S. at 692 (Scalia, J. concurring) (citations omitted).
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Even if the Clause is incorporated, or if the Free Exercise
Clause limits the power of States to establish religions, our
task would be far simpler if we returned to the original meaning of the word "establishment" than it is under the various
approaches this Court now uses. The Framers understood an
establishment "necessarily [to] involve actual legal coercion."
"In other words, establishment at the founding involved, for
example, mandatory observance or mandatory payment of
taxes supporting ministers." And "government practices that
have nothing to do with creating or maintaining ...coercive
state establishments" simply do not "implicate the possible
liberty interest of being free from coercive state
establishments."
There is no question that, based on the original meaning of
the Establishment Clause, the Ten Commandments display
at issue here is constitutional. In no sense does Texas compel
petitioner Van Orden to do anything. The only injury to him
is that he takes offense at seeing the monument as he passes
it on his way to the Texas Supreme Court Library. He need
not stop to read it or even to look at it, let alone to express
support for it or adopt the Commandments as guides for his
life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.
Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the
Court's current approach to such challenges....
Much, if not all, of this would be avoided if the Court would
return to the views of the Framers and adopt coercion as the
touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act as theological
commissions, judging the meaning of religious matters. Most
important, our precedent would be capable of consistent and
coherent application. While the Court correctly rejects the
challenge to the Ten Commandments monument on the
of our
Texas Capitol grounds, a more fundamental rethinking 143
Establishment Clause jurisprudence remains in order.
Justice Scalia amplified his originalist views in his McCreary
County dissent, which was joined by Chief Justice Rehnquist and Justices Thomas and (in part) Kennedy:
[Justice Scalia cited examples of prayer and invocations of
God's name by President Washington and the first members
of Congress and the Supreme Court.] These actions of our
143.
Id. at 692-98 (Thomas, J., concurring) (internal citations omitted).
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
First President and Congress and the Marshall Court were
not idiosyncratic; they reflected the beliefs of the period.
Those who wrote the Constitution believed that morality was
essential to the well-being of society and that encouragement
of religion was the best way to foster morality. The "fact that
the Founding Fathers believed devotedly that there was a
God and that the unalienable rights of man were rooted in
Him is clearly evidenced in their writings, from the
Mayflower Compact to the Constitution itself." President
Washington opened his Presidency with a prayer, and reminded his fellow citizens at the conclusion of it that "reason
and experience both forbid us to expect that National morality can prevail in exclusion of religious principle." President
John Adams wrote to the Massachusetts Militia, "we have no
government armed with power capable of contending with
human passions unbridled by morality and religion.... Our
Constitution was made only for a moral and religious people.
It is wholly inadequate to the government of any other."
Thomas Jefferson concluded his second inaugural address by
inviting his audience to pray:
"I shall need, too, the favor of that Being in whose hands
we are, who led our fathers, as Israel of old, from their
native land and planted them in a country flowing with
all the necessaries and comforts of life; who has covered
our infancy with His providence and our riper years with
His wisdom and power and to whose goodness I ask you
to join in supplications with me that He will so enlighten
the minds of your servants, guide their councils, and
prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace,
friendship, and approbation of all nations."
James Madison, in his first inaugural address, likewise
placed his confidence "in the guardianship and guidance of
that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed
to this rising Republic, and to whom we are bound to address
our devout gratitude for the past, as well as our fervent supplications and best hopes for the future ..."
With all of this reality (and much more) staring it in the face,
how can the Court possibly assert that "the First Amendment
mandates governmental neutrality between ... religion and
nonreligion," and that "manifesting a purpose to favor... adherence to religion generally" is unconstitutional? Who says
so? Surely not the words of the Constitution. Surely not the
history and traditions that reflect our society's constant understanding of those words....
CREIGHTON LAW REVIEW
[Vol. 40
Justice Stevens' [dissent in Van Orden] is largely devoted to
an attack upon a straw man. "Reliance on early religious
proclamations and statements made by the Founders is ...
problematic," he says, "because those views were not espoused at the Constitutional Convention in 1787 nor enshrined in the Constitution's text." But I have not relied upon
(as he and the Court in this case do) mere "proclamations and
statements" of the Founders. I have relied primarily upon official acts and official proclamations of the United States or of
the component branches of its Government, including the
First Congress's beginning of the tradition of legislative
prayer to God, its appointment of congressional chaplains, its
legislative proposal of a Thanksgiving Proclamation, and its
reenactment of the Northwest Territory Ordinance; our first
President's issuance of a Thanksgiving Proclamation; and invocation of God at the opening of sessions of the Supreme
Court. The only mere "proclamations and statements" of the
Founders I have relied upon were statements of Founders
who occupied federal office, and spoke in at least a quasi-official capacity - Washington's prayer at the opening of his
Presidency and his Farewell Address, President John Adams'
letter to the Massachusetts Militia, and Jefferson's and
Madison's inaugural addresses.... The Madison Memorial
and Remonstrance, dealing as it does with enforced contribution to religion rather than public acknowledgment of God, is
irrelevant; one of the letters is utterly ambiguous as to the
point at issue here, and should not be read to contradict
Madison's statements in his first inaugural address, quoted
earlier; even the other letter does not disapprove public acknowledgment of God, unless one posits (what Madison's own
actions as President would contradict) that reference to God
contradicts "the equality of all religious sects." And as to Jefferson: the notoriously self-contradicting Jefferson did not
choose to have his nonauthorship of a Thanksgiving Proclamation inscribed on his tombstone. What he did have inscribed was his authorship of the Virginia Statute for
Religious Freedom, a governmental act which begins
"Whereas Almighty God hath created the mind free...."
It is no answer for Justice Stevens to say that the understanding that these official and quasi-official actions reflect
was not "enshrined in the Constitution's text." The Establishment Clause, upon which Justice Stevens would rely, was enshrined in the Constitution's text, and these official actions
show what it meant. There were doubtless some who thought
it should have a broader meaning, but those views were
plainly rejected. Justice Stevens says that reliance on these
actions is "bound to paint a misleading picture," but it is hard
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
643
to see why. What is more probative of the meaning of the Establishment Clause than the actions of the very Congress
that proposed it, and of the first President charged with ob14 4
serving it?
Because Van Orden and McCreary County were decided by the
Supreme Court as companion cases and generated overlapping opinions, we will treat them as one case for this analysis. The Ten Commandments cases may not have brought any clarity to Establishment
Clause jurisprudence, but the concurring and dissenting opinions of
Justices Scalia and Thomas were powerful statements of constitutional originalism. Both of them wrote; each of them gets one point.
2005-
TAKINGS CLAUSE
Kelo v. City of New London 145 was another very high-profile case.
The five-Justice majority held that in the context of a redevelopment
plan, the government may take property from a private landowner
and transfer it to another private landowner for private use, rather
than the public use required by the Takings Clause, 14 6 as long as the
transfer accomplishes some "public purpose." Chief Justice Rehnquist
and Justices Scalia and Thomas all signed onto Justice O'Connor's
dissenting opinion. 147 Justice Thomas wrote another dissent, 148 however, joined by no other Justice, in which he explored at some length
the original textual meaning of the Takings Clause:
Long ago, William Blackstone wrote that "the law of the
land . . . postpones even public necessity to the sacred and
inviolable rights of private property." The Framers embodied
that principle in the Constitution, allowing the government to
take property not for "public necessity," but instead for "public use." Defying this understanding, the Court replaces the
Public Use Clause with a "'Public Purpose'" Clause (or perhaps the "Diverse and Always Evolving Needs of Society"
Clause), a restriction that is satisfied, the Court instructs, so
long as the purpose is "legitimate" and the means "not irrational." This deferential shift in phraseology enables the
Court to hold, against all common sense, that a costly urbanrenewal project whose stated purpose is a vague promise of
new jobs and increased tax revenue, but which is also suspi144. McCreary County v. ACLU, 545 U.S. 844, 887-97 (Scalia, J., dissenting) (internal citations omitted).
145. 545 U.S. 469 (2005).
146. The Takings Clause states "nor shall... private property be taken for public
use, without just compensation." U.S. CONST. amend. V.
147. Kelo v. City of New London, 545 U.S. 469, 494 (2005) (O'Connor, J., dissenting).
148. Kelo, 545 U.S. at 505 (Thomas, J., dissenting).
CREIGHTON LAW REVIEW
[Vol. 40
ciously agreeable to the Pfizer Corporation, is for a "public
use."
I cannot agree. If such "economic development" takings are
for a "public use," any taking is, and the Court has erased the
Public Use Clause from our Constitution ....
Regrettably,
however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing
the Public Use Clause to be a virtual nullity, without the
slightest nod to its original meaning. In my view, the Public
Use Clause, originally understood, is a meaningful limit on
the government's eminent domain power. Our cases have
strayed from the Clause's original meaning, and I would reconsider them....
The most natural reading of the Clause is that it allows the
government to take property only if the government owns, or
the public has a legal right to use, the property, as opposed to
taking it for any public purpose or necessity whatsoever. At
the time of the founding, dictionaries primarily defined the
noun "use" as "the act of employing any thing to any purpose." The term "use," moreover, "is from the Latin utor,
which means 'to use, make use of, avail one's self of, employ,
apply, enjoy, etc." When the government takes property and
gives it to a private individual, and the public has no right to
use the property, it strains language to say that the public is
"employing" the property, regardless of the incidental benefits that might accrue to the public from the private use. The
term "public use," then, means that either the government or
its citizens as a whole must actually "employ" the taken
property.
Granted, another sense of the word "use" was broader in
meaning, extending to "convenience" or "help," or "qualities
that make a thing proper for any purpose." Nevertheless,
read in context, the term "public use" possesses the narrower
meaning. Elsewhere, the Constitution twice employs the
word "use," both times in its narrower sense. Article 1, §10
provides that "the net Produce of all Duties and Imposts, laid
by any State on Imports or Exports, shall be for the Use of the
Treasury of the United States," meaning the Treasury itself
will control the taxes, not use it to any beneficial end. And
Article I, §8 grants Congress power "to raise and support Armies, but no Appropriation of Money to that Use shall be for a
longer Term than two Years." Here again, "use" means "employed to raise and support Armies," not anything directed to
achieving any military end. The same word in the Public Use
Clause should be interpreted to have the same meaning.
2007]
THE REAL CONSTITUTIONAL ORIGINALIST
Tellingly, the phrase "public use" contrasts with the very different phrase "general Welfare" used elsewhere in the Constitution. The Framers would have used some such broader
term if they had meant the Public Use Clause to have a similarly sweeping scope. Other founding-era documents made
the contrast between these two usages still more explicit. The
Constitution's text, in short, suggests that the Takings
Clause authorizes the taking of property only if the public has
a right to employ it, not if the public realizes any conceivable
benefit from the taking.
The Constitution's common-law background reinforces this
understanding. The common law provided an express method
of eliminating uses of land that adversely impacted the public
welfare: nuisance law ....
Blackstone rejected the idea that
private property could be taken solely for purposes of any
public benefit ....
When the public took property, in other
words, it took it as an individual buying property from another typically would: for one's own use. The Public Use
Clause, in short, embodied the Framers' understanding that
property is a natural, fundamental right, prohibiting the government from "taking property from A. and giving it to B."
The public purpose interpretation of the Public Use Clause
also unnecessarily duplicates a similar inquiry required by
the Necessary and Proper Clause. The Takings Clause is a
prohibition, not a grant of power: The Constitution does not
expressly grant the Federal Government the power to take
property for any public purpose whatsoever. Instead, the
Government may take property only when necessary and
proper to the exercise of an expressly enumerated power. For
a law to be within the Necessary and Proper Clause, as I have
elsewhere explained, it must bear an "obvious, simple, and
direct relation" to an exercise of Congress' enumerated powers, and it must not "subvert basic principles of" constitutional design. In other words, a taking is permissible under
the Necessary and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use Clause likewise to
limit the government to take property only for sufficiently
public purposes replicates this inquiry. If this is all the
Clause means, it is, once again, surplusage. The Clause is
thus most naturally read to concern whether the property is
used by the public or the government, not whether the purpose of the taking is legitimately public.
[Justice Thomas goes on to show that early American eminent domain practice largely bears out this understanding of
the Public Use Clause.]
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Our current Public Use Clause jurisprudence, as the Court
notes, has rejected this natural reading of the Clause. The
Court adopted its modern reading blindly, with little discussion of the Clause's history and original meaning.... For all
these reasons, I would revisit our Public Use Clause cases
and consider returning to the original meaning of the Public
Use Clause: that the government may take property only if it
actually uses or gives the public a legal right to use the
property. 149
This is one of Justice Thomas' most thorough uses of originalmeaning textualist analysis. There is no way to know why Justice
Scalia chose not to join this dissent, but we will give Justice Thomas
one unanswered point.
2006-
SOVEREIGN IMMUNITY
The question presented in Central Virginia Community College v.
Katz 150 was whether Eleventh Amendment sovereign immunity
would protect a state from suit under the federal Bankruptcy Code.
The majority, in an opinion by Justice Stevens,' 5 ' attempted to defend
its position as an originalist view.
Justice Thomas, in a dissent joined by Chief Justice Roberts and
Justices Scalia and Kennedy, began with these words:
Under our Constitution, the States are not subject to suit by
private parties for monetary relief absent their consent or a
valid congressional abrogation, and it is "settled doctrine"
that nothing in Article I of the Constitution establishes those
preconditions. Yet the majority today casts aside these longestablished principles to hold that the States are subject to
suit by a rather unlikely class of individuals-bankruptcy
trustees seeking recovery of preferential transfers for a bankrupt debtor's estate. This conclusion cannot be justified by the
15 2
text, structure, or history of our Constitution.
Justice Thomas went on at some length to establish that the original understanding of constitutional sovereign immunity included
bankruptcy proceedings. He earns a point for writing it, and Justice
Scalia earns half a point for joining it.
149. Id. at 505-23 (Thomas, J., dissenting) (internal citations omitted).
150. 546 U.S. 356, 126 S. Ct. 990 (2006).
151. The fifth vote for the majority was Justice O'Connor in one of the last decisions
during her tenure on the Court and in a switch from her usual position in Eleventh
Amendment cases. See, e.g., Seminole Tribe v. Florida, 517 U.S. 44 (1996).
152. Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 126 S. Ct. 990, 1005-06 (2006)
(Thomas, J., dissenting).
2007]
2006-
THE REAL CONSTITUTIONAL ORIGINALIST
647
SEARCHES AND SEIZURES
In 1996 the Supreme Court decided Georgia v. Randolph,1 53 holding that it was unreasonable for police to search a home for cocaine
without a warrant when the suspect's wife consented to the search but
the suspect did not. Justice Scalia wrote a dissenting opinion noting
that the concepts of entry and search are dependent on property law
and that even he as an originalist would agree that changes in the
underlying property law could change the outcome of cases even
though the meaning of the Fourth Amendment does not change:
It is not as clear to me as it is to Justice Stevens that, at the
time the Fourth Amendment was adopted, a police officer
could enter a married woman's home over her objection, and
could not enter with only her consent. Nor is it clear to me
that the answers to these questions depended solely on who
owned the house. It is entirely clear, however, that if the matter did depend solely on property rights, a latter-day alteration of property rights would also produce a latter-day
alteration of the Fourth Amendment outcome - without altering the Fourth Amendment itself.
Justice Stevens' attempted critique of originalism confuses
the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred. From the date of its ratification until
well into the 20th century, violation of the Amendment was
tied to common-law trespass. On the basis of that connection,
someone who had power to license the search of a house by a
private party could authorize a police search. The issue of
who could give such consent generally depended, in turn, on
"historical and legal refinements" of property law. As property law developed, individuals who previously could not authorize a search might become able to do so, and those who
once could grant such consent might no longer have that
power. But changes in the law of property to which the
Fourth Amendment referred would not alter the Amendment's meaning: that anyone capable of authorizing a search
by a private party could consent to a warrantless search by
the police.
There is nothing new or surprising in the proposition that our
unchanging Constitution refers to other bodies of law that
might themselves change. The Fifth Amendment provides,
for instance, that "private property" shall not "be taken for
public use, without just compensation"; but it does not purport to define property rights. We have consistently held that
153.
547 U.S. 103, 126 S. Ct. 1515 (2006).
CREIGHTON LAW REVIEW
[Vol. 40
"the existence of a property interest is determined by reference to 'existing rules or understandings that stem from an
independent source such as state law.'" The same is true of
the Fourteenth Amendment Due Process Clause's protection
of "property." His reference to changeable law presents no
problem for the originalist. No one supposes that the meaning
of the Constitution changes as States expand and contract
property rights. If it is indeed true, therefore, that a wife in
1791 could not authorize the search of her husband's house,
the fact that current property law provides otherwise is no
more troublesome for the originalist than the well established
fact that a State must compensate its takings of even those
property rights that did not exist at the time of the
Founding.154
Justice Thomas added his own dissenting opinion but without any
originalist analysis. We finish with one unanswered point for Justice
Scalia.
III.
CONCLUSION
It is time to summarize our results:
Year
Topic
Case
Originalist Opinions
Scalia
Thomas
1992
1995
Establishment Clause
Establishment Clause
Free Speech
Commerce Clause
Appointments Clause
Commerce Clause
Federalism
Free Exercise Clause
Privileges or Immunities
Criminal Procedure
Fifth Amendment
Commerce Clause
Weisman
Rosenberger
McIntyre
Lopez
Edmond
Camps
Printz
Boerne
Saenz
Portuondo
Hubbell
Morrison
wrote
none
wrote 155
none
wrote
joined
wrote 1 56
wrote
none
wrote
none
none
1997
1999
2000
First Half Score
2001
2002
Delegation of Legis. Power
Death Penalty
Sovereign Immunity
Establishment Clause
Whitman
Atkins
FMC
Zelman
joined
wrote
wrote
wrote
joined
wrote
wrote
none
wrote
joined
none
wrote
5112
812
none
none
joined
none
wrote
none
wrote
wrote
154. Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 1539-40 (2006) (Scalia, J.,
dissenting).
155. Because Justice Scalia's opinion in McIntyre was much weaker originalism
than Justice Thomas', it was given only half a point. See supra notes 29-34 and
accompanying text.
156. As in McIntyre, Justice Scalia's opinion in Printz was much weaker originalism
than Justice Thomas', earning him only half a point. See supra notes 55-62 and
accompanying text.
2007]
2003
2004
2005
2006
THE REAL CONSTITUTIONAL ORIGINALIST
Right of "Privacy"
Criminal Proc./War Powers
Establishment Clause
Death Penalty
Establishment Clause
Establishment Clause
Takings Clause
Sovereign Immunity
Searches & Seizures
Lawrence
Hamdi
Elk Grove
Roper
Cutter
10 Command.
Kelo
Katz
Randolph
Second Half Score
Total Score:
wrote
wrote
none
wrote
none
wrote
none
joined
wrote
6
649
wrote
wrote
wrote
joined
wrote
wrote
wrote
wrote
none
1012
Thomas 19, Scalia 1112.
We have identified twenty-three cases since 1992 (counting the
companion "Ten Commandments" cases, Van Orden and McCreary
County, 15 7 as one case) in which either Justice Scalia or Justice
Thomas wrote an opinion that explicitly invoked original meaning textualism. Of those twenty-three, Justice Scalia wrote eleven originalist
opinions (counting the weak efforts in McIntyre and Printz), joined
three originalist opinions by Justice Thomas, and stayed away from
originalism in nine cases. Justice Thomas wrote seventeen originalist
opinions, joined four by Justice Scalia, and stayed out of the fray on
only two.
If we divide the contest between the twentieth and twenty-first
centuries, the recent results are similar. Of the twelve cases discussed that were decided in 2001 or later, Justice Scalia wrote five
originalist opinions, joined two by Justice Thomas, and refrained from
originalism in five cases. Justice Thomas wrote ten originalist opinions, joined one by Justice Scalia, and abstained from originalism in
only one.
The Supreme Court's real original meaning textualist? The evidence points to Clarence Thomas. Perhaps in the future this answer
will change, since it is too early to tell whether Chief Justice Roberts
and Justice Alito may become consistent voices for original meaning
textualism.
One must take the conclusion with a certain level of skepticism, of
course. There is no doubt that Justice Scalia and Justice Thomas are
both great champions of original meaning textualism. Although we
have attempted to be comprehensive in identifying examples of
originalism over their fifteen years on the Supreme Court together,
there is certainly some level of subjectivity in determining which opinions to include and which to exclude, so the final point totals could
have changed a little bit. It is also true that textualist thinking may
157.
See supra notes 139-44 and accompanying text.
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have influenced the Justices' other written opinions in many subtle
ways. And there is no doubt that in taking a high-profile stance in
support of originalism through his writing and public speaking, Justice Scalia has done a tremendous amount to serve the cause.
Still, the primary job of a judge is to decide cases, not to give
speeches or write books and articles. When we look specifically at the
number of cases in which each Justice has overtly thrown down the
gauntlet of original meaning, it seems clear that the "Living Constitution" folks have the wrong face on their dartboards. Their real public
enemy number one, it seems, should be Justice Clarence Thomas, the
Real Originalist.