The Limits of Originalism

Supreme Court Justice Clarence Thomas recently issued two rather remarkable opinions that challenge landmark rulings of the liberal Warren Court, one directly and the other implicitly. The solo opinions—one on voting rights, the other on the right to criminal representation—may not portend major changes in the law for the immediate future. But together, the two opinions display the unworkability of Thomas’s influential brand of originalism, and they also show how radical an agenda a Supreme Court controlled by contemporary Republicans could pursue.

Having blocked any consideration of Merrick Garland, President Barack Obama’s choice to replace Justice Antonin Scalia, Republicans on Capitol Hill have signaled their determination to ensure continued conservative dominance on the Court. On the Supreme Court, “conservative” is often associated with “originalism”— the idea that the constitutional provisions should be interpreted based on their meaning when they were ratified. Thomas is the most prominent advocate of this approach. As his recent opinions illustrate, originalism has a way of subverting the constitutional principles it purports to uphold.

The most attention-getting of Thomas’s opinions came in the closely watched voting-rights case Evenwel v. Abbott, in which the Supreme Court unanimously held that the 14th Amendment does not require state legislatures to apportion districts based only on registered and eligible voters, rather than on total population. The question is important because voter turnout and registration are generally higher among white people than people of color; older people than young people; and affluent people than poor people. Apportioning by voters alone, rather than by all people living in a district, would therefore disenfranchise already underrepresented groups.

While all eight of the Court’s justices agreed that Texas was not required to apportion by registered voters, they disagreed over whether drawing district lines on that basis would be constitutional. Justice Ruth Bader Ginsburg’s opinion for the Court implied that it would not, while Justice Samuel Alito’s concurrence made it clear that he thought the 14th Amendment was agnostic on the question. While Thomas joined most of Alito’s opinion, he went quite a bit further, going after the Supreme Court’s longstanding “one person, one vote” rule.

Chief Justice Earl Warren, who presided over the Court from 1953 to 1969, considered his Court’s voting-rights cases, like Baker v. Carr and Reynolds v. Sims, even more important that the great desegregation case Brown v. Board of Education. In Warren’s view, preventing states from diluting minority representation through malapportionment was crucial to protecting civil rights. To Thomas, however, legislative apportionment that vastly over-represents white voters is perfectly constitutional.

“[T]his Court has never provided a sound basis for the one-person, one-vote principle,” argued Thomas in his Evenwel opinion. Many of the framers of the Constitution “viewed antidemocratic checks as indispensable to republican government. And included among the antidemocratic checks were legislatures that deviated from perfect equality of representation.” Perhaps most remarkably, Thomas added that “[n]one of the Reconstruction Amendments changed the original understanding of republican government.”

The argument that the 14th and 15th Amendments do not make diluting minority vote representation unconstitutional is, to say the least, problematic. But this is a frequent problem for originalists, whose focus on the Constitution of 1787 leads them to overlook how fundamentally Reconstruction-era amendments changed the constitutional order.  Republican judges in both the late 19th century and the 21st century have subverted the purposes of the 14th and 15th Amendments in the specious name of the original meaning of the Constitution.

Similar problems with originalism can be seen in another Thomas opinion from late last month. In Luis v. United States, the Supreme Court held that the state may not prevent assets that do not directly come from illegal activity from being used to pay for a lawyer. Thomas concurred in the Court’s opinion on originalist grounds, and in doing so implicitly challenged one of the Warren Court’s most celebrated decisions.

In Gideon v. Wainwright, the Supreme Court in 1963 held that the Sixth Amendment right “to have the assistance of counsel” means that states must provide counsel to defendants facing criminal charges if they cannot afford their own. Anthony Lewis told the story of that case in his bestselling book Gideon’s Trumpet, which was in turn made into a 1980 movie starring Henry Fonda.

In his Luis concurrence, however, Thomas based his Sixth Amendment reading not on Gideon but on Betts v. Brady, the case Gideon overruled. The Sixth Amendment, according to Thomas, “abolished the rule prohibiting representation in felony cases, but was ‘not aimed to compel the State to provide counsel for a defendant.’” While he does not say so explicitly, he seems to be claiming that Gideon was wrong, according to the Constitution’s original meaning, and hence originalists should want it overruled. The state, according to Thomas, may throw people in jail without offering them access to a lawyer—something most criminal defendants cannot afford on their own.

Thomas does not, however, explicitly call for this outcome. Is there any way Gideon can be salvaged under originalism? Perhaps, but this can only be done by draining originalist theory of any meaningful content.

An originalist might respond like this: The Sixth Amendment, as originally understood, protected a negative right to counsel (that is, the state cannot interfere with someone hiring a lawyer of their choice) but not a positive one (the state is not required to provide counsel to anyone who cannot afford one). However, the growing cost of legal representation and the increasing complexity of criminal procedures mean that in 2016 it is not possible for a criminal defendant to receive a fair trial without counsel, even if it were possible in 1789. Therefore, the Sixth Amendment’s right to counsel and/or the 5th and 14th Amendment’s guarantee of the “due process of law” requires the state to provide counsel to criminal defendants who cannot afford one now, even if this was not the case when the amendments were ratified. So the outcome in Gideon, if not its reasoning, can be reconciled with the original understanding. This is how many originalists have concluded that Brown v. Board is consistent with the original understanding, even though most of the framers and ratifiers of the 14th Amendment did not think it forbade school segregation.

This argument is not wrong, precisely. But the problem is that once the “original meaning” of the Constitution is defined at such a high level of abstraction, there’s no meaningful difference between “originalists” and the “living constitutionalists” they deride. History loses any bite, and originalists wind up just doing what everybody else does: applying a broadly worded constitutional principle to the particular circumstances of today.

Thomas’s recent opinions, then, illustrate a fundamental problem with originalism. Either the theory produces unacceptable results that subvert the constitutional principles it purports to uphold, or history loses relevance because abstract principles are applied to contemporary circumstances unknown at the time the relevant provisions were ratified. Either way, originalism doesn’t work. Let’s hope the post-Scalia Court doesn’t end up turning in that direction.

Correction: This story has been corrected to reflect that Henry Fonda starred in the 1980 movie, "Gideon's Trumpet."

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