In response to: Saving Originalism from the Originalists
Kudos to Stephen Smith, and kudos to the man behind the curtain (Richard Reinsch) for inviting his essay. What a breath of fresh air. In the current environment, constitutionalism seems unlikely to regain real-world traction any time soon. Surely, though, that must remain the long-term objective. To that end originalism must liberate itself from its self-inflicted debilities. Smith’s essay is a great start. I’m not sure I would characterize the jurisprudence he envisions as “activist”—re- or otherwise. I’m not even sure it needs to be strategic (although it can be). But Professor Smith has hit a very important doctrinal nail on the head.
He is a rock-ribbed originalist. But he wants to give originalism a “strategic dimension.” Placing before us a nonoriginalist, rights-creating decision in a hypothetical “Case One,” he says that in “Case Two,” also hypothetical, originalist justices should decline to extend that precedent even if that would be their first-best, authentic preference. (Actually it would be their second-best; the first-best, by definition, is to overrule Case One. But that option is foreclosed.) Instead, the originalists should identify—within the bounds of their understanding of the Constitution—a “doctrinal complement” to circumscribe the newfangled right.
If the nonoriginalist majority from Case One is divided in Case Two, the originalists’ strategic vote will produce a majority to limit the new right. Smith dubs this strategy “reactivism.” Like mutually assured nuclear destruction, he writes, reactivism would give nonoriginalist justices an incentive to exercise restraint.
That, I think, is over-claiming. “Nuclear” reactivism would say something like this: If you liberals keep making up new rights under the Due Process Clause or the Ninth Amendment or whatever, we conservatives will retaliate and crank up rights that we happen to like—especially when those rights actually happen to be in the Constitution, like property.
That version of originalism sails under various banners—a “presumption in favor of liberty” (Randy Barnett), or an “engaged” judiciary (Institute for Justice, Cato Institute). The proponents of this stance wouldn’t characterize it as strategic; they think it’s the actual Constitution. Their program holds attraction for scholars and pundits who, ideally, would prefer judicial restraint. But that project went by the boards eons ago. Roe won’t be reversed; let’s make the most of it.
It’s fair to say that this version of “reactivism” has never deterred liberal activists. They know that the other side doesn’t actually have any nuclear weapons. The Takings Clause? Fought that; lost. A Commerce Clause with teeth? Please. A return of Lochner, in some form? That’s a scarecrow, not a rallying cry. I tell “engagement” advocates what I tell all my libertarian friends: Feel free, and good luck. Gun rights aside, though, I doubt that much will come of it.
Engagement is not, in any event, Stephen Smith’s project. What he advocates in his Liberty Forum essay is something like damage control. Nonoriginalists will get to keep their precedents; they just won’t be able to go as far as they might have hoped. That isn’t much of a deterrent, and probably none at all.
How much, then, can Smithean reactivism really do for you, or us? Quite a bit, in fact.
Originalism, as Smith notes, has forced nonoriginalist Supreme Court justices to prevaricate in their nomination hearings; it has never restrained them on the bench. For the reasons just mentioned, “reactivism” cannot produce that restraint, either. In a sense, it’s absurd to demand the impossible of originalists and their “ism.” Still, Smith is asking the right question. He is right, moreover, that originalism must be complemented, not abandoned.
The paradigmatic originalist case is the interpretation of the raw constitutional text in “Case One.” Does that happen? Sure. Gun rights. Recess appointments. But these encounters turn into originalist obsessions precisely because they come along only once in a blue moon. In the ordinary course of events, the originalist justice will encounter not just the text but a raft of precedents—and not just precedents but worked-out doctrines. The constitutional text is (hopefully) the source of these doctrines and remains their lodestar—but it’s mediated through the various doctrines. Moreover, any given one of them comes replete with a set of neighboring or overlapping doctrines—on remedies, or jurisdiction, or avoidance, for example.
Some originalists have huge problems with this picture. The constitutional text, they say, is all there is. That text, moreover, must be read clause by clause. In the most extreme version of this approach (John Manning’s), you’re not even allowed to look at the constitutional structure (except in very rare cases); that smacks of “purposivism” and “common law constitutionalism.”
I find little to commend that approach. It insists on reading the Constitution like a statute, which is absurd and, for what it’s worth, decidedly nonoriginalist. (Go read The Federalist.) It means that Gibbons v. Ogden (1824), and M’Culloch v. Maryland (1819) and Osborn v. Bank of the United States (1824), and practically all of the other Marshall decisions were wrong. (All of them insist that it’s a Constitution we’re expounding, not a statute; all state extra-textual doctrines.) And to all intents, clause-bound originalism puts the actual Constitution out of operation, so long as you believe in even a limited version of stare decisis. This version of originalism is indeed, as Smith charges, a strategy of unilateral conservative disarmament—which is why it can be safely taught and advocated at Harvard Law School.
Stephen Smith, if I understand him correctly, wants to mobilize the doctrine-laden, interdependent nature of constitutional law. Look carefully at his stylized scenario: If Case Two were a simple matter of extending, or not, the holding of Case One, the originalist response would be obvious, and obviously despairing. (“Case One was wrongly decided and by all rights should be overruled. But we certainly shouldn’t extend it.”) Thus, it’s the originalists’ decision in the Case Two scenario to invoke some other, “complementary” doctrine—and to treat it as a “package” with the rule of Case One—that makes their conduct strategic and gives “reactivist” originalism its bite.
Does it work?
The question does not call for speculation; it has an empirical answer. As Smith notes, citing a terrific article by Evan Caminker, the Rehnquist Court’s federalism jurisprudence was largely reactivist in Smith’s sense. The Warren-Brennan Court’s rights revolution had armed plaintiffs with a million ways to sue state and local governments. Under Chief Justices Rehnquist and Roberts, the Court found doctrines to stem and then reverse that tide: sovereign immunity; official immunities; a “clear statement” rule; restrictive standing doctrines; limits on Ex Parte Young relief; a “congruence and proportionality” test for Fourteenth Amendment legislation; narrow “implied private rights of action” doctrines and their importation into Section 1983 cases; and much else, besides.
As the esoteric nature of these doctrines suggests, they are second-order doctrines; most aren’t constitutional in any immediate sense. But all are reactivist in effect (though not always in intent, on the part of all justices). A few owe their legitimacy, such as it is, entirely to that nature. The Court’s exotic immunity doctrines, for example, are hard to justify as anything other than a backdoor way of limiting remedies for dubious rights.
In creating this imposing doctrinal edifice, the Court demolished a large part of William Brennan’s legacy. Consistent with Smith’s understanding of reactivism, the conservative justices accomplished the feat without overruling a single rights-creating precedent.
Quite a feat. Was it worth it?
One can argue that the Court’s federalism—that imposing edifice notwithstanding—hasn’t done much to invigorate federalism. The reason is that “reactivist” decisions, which mostly have to do with protecting officials of the state governments from suit, have been accompanied by a stream of decisions that hamper the citizenry in those states from making their own moral decisions in such matters as abortion and marriage. This schizophrenic, emaciated, government-centered federalism is actually Justice Kennedy’s first, authentic preference; it was also Justice O’Connor’s. Given the votes, though, that couldn’t be helped. An emaciated federalism is better than none at all.
One can further argue that “reactivism” is illegitimate, because it seems underhanded. If the justices lack the nerve to wipe out a recently recognized right, what allows them to render it ineffectual (for example, by clipping back the remedies)? Now personally, I don’t mind underhanded doctrines: it’s what I teach and what keeps my wife and kids in shoes. In truth, though, I can’t see anything wrong with treating doctrines as interrelated and as “packages.” The criminal mistake (I tell my students in their very first ConLaw, AdLaw, or FedCourts class) is to treat this body of law one case, one clause, one doctrine at a time. If you do, you’ll never comprehend the first damn thing about it. The doctrines belong together.
A third, far more potent objection is that justices often aren’t very good at identifying second-best doctrines. More precisely: contrary (I think) to Smith’s contention, it’s not at all clear that “reactivism” keeps you close—at least, closer than nonstrategic originalism—to the Constitution. It may in fact entrench constitutional error. That is especially true when the initial Case One decision was disastrously wrong and the compensating adjustments are numerous, are capacious, and—kind of, sort of—seem to work. The strategic adjustments take on a life of their own. Eventually Case One comes to look like it’s the Constitution itself, rather than error.
The quintessential Case One that hovers over all of modern ConLaw is Erie Railroad v. Tomkins (1938). It has been validated by a gaggle of reactivist doctrines, all of them highly involved and often complexified by re-re-activist doctrines, if you will, that have managed to put the original error beyond reproach. Or so I have argued elsewhere, at some length.
Since this isn’t the place to rehearse a convoluted argument, here’s the broader, general point:
The packaged doctrines Smith characterizes as “reactivist” will work only if they are developed from, and understood against, the baseline of the first-best doctrines or principles they are designed to prop up or replace. Put differently: the first-best doctrines still have to have some grip, even if they are operating unseen in the background.
That is the only way to re-approximate the Constitution, instead of entrenching error. That is what distinguishes strategic decisions from mere tactical maneuvering that reaches the “right” result by making an unholy mess of things. Smith, I think, agrees with these propositions.
This is a very hard thing to do, in case after case. And the man who could do it and did do it over the course of three decades is gone.
Over his illustrious career and even more so in the obituaries written upon his untimely death, Justice Antonin Scalia was treated—by friend and foe alike—as a grand theorist of the Constitution and its interpretive meta-theory. Then of course came the carping: he doesn’t understand Wittgenstein on language. He betrays his own principles in adhering to precedent. He fails to distinguish between concepts and conceptions. He doesn’t appreciate the many meanings of “meaning.” And so on.
All this about a jurist who proffered originalism as a “least-bad” option; who professed himself “faint-hearted” about the business; and who by all lights had zero interest in the increasingly metaphysical debates over just what sort of originalist one ought to be. The “grand theorist” theory of Justice Scalia is gravely mistaken. He was the quintessential “reactivist” or, better, doctrinalist—by temperament and disposition, I think, but certainly in practice. Justice Scalia’s high-toned textualist opinions (mostly dissents) are surely worth celebrating. But then, so are his doctrinal opinions. He understood that stuff like nobody else.
Some of Justice Scalia’s major opinions are explicitly “reactivist” in Smith’s sense. The dissent in Mistretta v. United States (1989) is a prominent example; the concurrence in Stern v. Marshall (2011) is another. Other opinions make no bones about the enterprise. Alexander v. Sandoval (2001) and Armstrong v. Exceptional Child Center (2015) belong in that category. Yet others push up very hard against Justice Scalia’s first-order commitments. Read United Technologies v. Boyle (1988) or the 2011 decision in AT&T Mobility v. Concepcion: hard to swallow if you believe in hardcore textualism or for that matter Erie.
Did Justice Scalia make mistakes? Occasionally—for example, in somewhat cranky opinions on the dormant Commerce Clause. Did he always fully understand what he was doing? Arguably not. Printz v. United States (1997), for example, reads like a sloppy “reactivist” opinion, when in fact its anti-commandeering principle is foundational.
Was he always fully committed to the “package” doctrine of Smith’s Case Two? Probably not. I think he just held his nose for the Court’s sovereign immunity burble. (If memory serves, which it may not, he did not actually write any of those opinions.) To his very considerable credit, though, he confessed error in some instances, as in Tennessee v. Lane (2004). I went along with an absurd test (“congruence and proportionality”) for prudential reasons, he wrote; I now repent and will henceforth dissent. This jurisprudence bears little resemblance to the crabbed, clause-bound originalism that some critics ascribed to the great justice. Precisely on that account it merits celebration, or at least serious engagement.
As noted, I have problems with the “reactivist” label. “Activism” is not a terribly helpful category in the first place, and “reactivist” sounds manipulative. Something like “common law originalism” might be better (although I grant that it might make Justice Scalia spin in his grave). The point for now is simply this: We need not debate Stephen Smith’s project in a vacuum. It’s out there, open for examination and discussion. An appraisal of Justice Scalia’s doctrinal legacy would be a fine place to start.
I have just the man to write that article: Stephen Smith. Go to it, big guy.
 In entirely realistic circumstances, “reactivism” may in fact promote nonoriginalism. A nonoriginalist but non-insane justice might vote against a new right in Case One if it entailed all that it seems to entail. He or she might vote for that right in light of the prospect that “reactivist” justices will surely join him, or her, to provide a check in Case Two. I suspect that much of the modern rights machinery did in fact originate in that fashion.
 I am inclined to think the pattern is quite common. It characterizes the Court’s cut-back on Bivens actions and constitutional torts under Section 1983, and it’s probably also prevalent in the criminal justice area. That may in fact be the example that Stephen Smith—an expert on the subject—has in mind. I just don’t know enough about it to speak with any confidence.
 Okay, one or two: Parden v. Terminal Ry., 377 U.S. 184 (1964) (constructive waiver of sovereign immunity); and, depending on how you read it, Pennsylvania v. Union Gas, 491 U.S. 1 (1989) (abrogation of immunity under Article I). Big whoop.
 Michael S. Greve, The Upside-Down Constitution (Harvard University Press, 2012). The danger noted in the text is illustrated by the most famous defense of Erie, which rests precisely on the contention that the case itself paved the way for reactivism. Henry Friendly, “In Praise of Erie—and of the New Federal Common Law,” New York University Law Review 39 (1964) 383.
 That sort of “strategizing,” alas, seems to have become a habit on a nominally conservative Court. I would put Bond v. United States (majority opinion), Stern v. Marshall (majority opinion), Gunn v. Minton, and the Medicaid piece of NFIB v. Sebelius in this category.
 I provide case examples for purposes of illustration and omit discussion or elaboration for the sake of brevity. Happy to discuss on- or off-line.
Stephen F. Smith begins his Liberty Forum essay by quoting from Justice Antonin Scalia’s “Originalism: The Lesser Evil” speech from 1988. There Scalia announces that the Constitution, though it has an effect superior to other laws, is in its nature a sort of ‘law’ that is the business of the courts—an enactment that has a fixed…
Stephen Smith’s Liberty Forum essay concerns an important question for originalism: How can originalists provide nonoriginalists with an incentive to follow the Constitution’s original meaning? Smith identifies what he regards as a serious problem with originalism: “In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of…
It was an honor for me to contribute my initial essay, “Saving Originalism from the Originalists,” to the Liberty Law Forum, and now I am doubly honored to have had my work reviewed by constitutional scholars as widely respected as Professors Michael Greve, Gordon Lloyd, and Mike Rappaport. I am grateful to each of them…