Solicitors General and the Supreme Court

Summary

In a compelling discussion, the National Constitution Center hosted a debate between Solicitors General Ben Flowers and Carolyn Van Zile on how to interpret the U.S. Constitution. The event focused on the methodologies of constitutional interpretation, delving into the ongoing debate between textualists/originalists and those favoring a more flexible approach. Flowers identifies as an originalist, emphasizing the fixed meanings of words, while Van Zile advocates for a pluralist method that goes beyond the text to include broader contexts. Key constitutional cases, such as the Dobbs and Bruin decisions, were used as examples to illustrate how the Supreme Court justices interpret laws based on their philosophical leanings, revealing the evolving nature of legal interpretation.

Highlights

• Solicitors General Ben Flowers and Carolyn Van Zile engage in a spirited debate on constitutional interpretation. 🤓⚖️
• Flowers embraces originalism, viewing the Constitution as a static document with fixed meanings, while Van Zile supports a more adaptable approach. 📜🔍
• Significant cases like Dobbs and Bruin illustrate the Supreme Court’s divided interpretation methods. Two-thirds of states banned abortions by 1868, a crucial historical point in Dobbs. 🏛️
• In the Bruin case, Justice Thomas relies on historical analogs to judge firearm regulations, while the dissent critiques his selective historical lens. 💥🔫
• Bruin and Dobbs cases reveal the unresolved debate on whether historical or contemporary interpretations should guide the court. 🚀🤔
• The major questions doctrine is examined as a modern textual challenge, leaving some justices skeptical of its legitimacy. 🧩❓

Key Takeaways

• Textualism vs. Originalism: A superhero face-off in legal interpretation 🦸‍♂️⚖️
• Solicitors General Flowers and Van Zile dish out their constitutional interpretation styles like recipes in a legal kitchen! 🍽️📜
• Understanding ‘because of sex’ has become a wild ride in the Supreme Court’s textualism debate! 🎢👩‍⚖️🧔‍⚖️
• History plays judge in the Bruin case. Does it tell the same old story or sing a new tune? 🏛️🎶
• Major questions doctrine – solving big issues or just memes on the bench? 🤔📜
• Debate heats up with analogies about bears and textual meal preps, reminding us law is anything but boring! 🐻📚

Overview

The National Constitution Center hosted a dynamic discussion featuring Solicitors General Ben Flowers of Ohio and Carolyn Van Zile from the District of Columbia. They explored the complex world of constitutional interpretation, highlighting two dominant methodologies in law—textualism/originalism versus a more flexible, interpretive approach. This dialogue provided valuable insights into how legal minds interpret the Constitution and the significant role these differing views play in shaping American jurisprudence.

In this session, key Supreme Court cases like Dobbs v. Jackson Women's Health Organization and New York State Rifle & Pistol Association v. Bruen exemplified the divided perspectives on constitutional interpretation. The Dobbs case revisited historical bans on abortion, while Bruen examined firearms regulation through a historical lens. These cases underscore ongoing disagreements about how laws should evolve with time or remain tethered to their original context.

Ultimately, the debate served as a reminder of the pivotal role that different interpretations of constitutional language play in the judicial system. While Flowers insisted on the importance of adhering strictly to historical texts, Van Zile argued for considering broader societal changes. Together, these discussions illustrate the dynamic and ever-evolving nature of constitutional law, which continues to affect major legal decisions and public policy.

Solicitors General and the Supreme Court Transcription

• 00:00 - 00:30 dialogue and debate it's what nag does as well and that's why our partnership is so valuable so we have a great privilege which is a conversation with uh two of your very distinguished colleagues about how to interpret the Constitution um before before I jump in I should thank the great Partners at nag and I need my constitutional reading glasses to do this but uh Dave Yost your your president the Ohio
• 00:30 - 01:00 attorney general your executive director Brian Kane of course Mike Kirkendall at the center for excellence who's been such a great partner and Dan Schweitzer the Supreme Court director and chief counsel have been invaluable and we really value this partnership I think I will also begin um by doing something we do at the beginning of all of our programs by reciting together the Constitution Center's mission statement I hear some laughs because there's some podcasts listeners out there it's a combination of a mantra and a secular uh incantation
• 01:00 - 01:30 but it inspires ourselves for the conversation ahead here we go the national Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the Constitution among the American people on a non-partisan basis absolutely thank you for for that radical Act of Faith in America's uh Constitution and um and and constituted documents so um
• 01:30 - 02:00 are you know our our friends I'll introduce them uh quickly Ben flower solicitor general of Ohio um litigated so many important uh cases including most recently arguing the vaccine mandate case before the court last term which we'll talk about he was a law clerk to justices uh justice Scalia and judge Sandra akuta of the ninth circuit and Carolyn van ziel is solicitor general for the District of
• 02:00 - 02:30 Columbia she has as an attorney at scadden handle appellate matters at the Supreme Court and many federal appellate and state courts and she previously clerked for justice Kennedy then judge Kavanaugh and judge bosberg please join me in welcoming solicitors General flowers and benzyl wonderful so this is a discussion about methodology and how to interpret the
• 02:30 - 03:00 Constitution and there's a vigorous debate on the Supreme Court and the country right now between people who have different methodologies and to paint with a broad brush there is a group of justices who insist that text history and tradition are the lodest stars in legal interpretation some call themselves originalists others textualists but a text history and tradition are there uh are there North Stars and then there are other justices who agree that text history and
• 03:00 - 03:30 tradition are important interpretive elements but they would broaden the lens to include other considerations including precedent pragmatic considerations and more so we're going to talk about the nature of the debate and then we'll tee up a series of cases to examine it and debate how the court applied these methodologies uh and whether they did so convincingly or not so let's just begin with the debate
• 03:30 - 04:00 um uh General flowers would you call yourself a textualist or an originalist what would you what label would you Embrace if any and and why are you a textualist or an originalist sure first of all thank you for having me it's a pleasure to be here with you with my former co-clerk Caroline we were at the court together so it's nice to be uh uh talking about these issues once again uh you know I have sort of two two capacities as a lawyer at my I guess my jurisprudential idol would be uh former
• 04:00 - 04:30 Raiders owner Al Davis who said just win baby uh I'll make well I am not an originalist I'm not a living constitutionalist we'll make the arguments we think will prevail um but more intellectually I would call myself an originalist I personally don't draw a distinction between originalism and textualism I think uh if you wanted to nitpick you could say originalism is textualism applied to the Constitution but both ask but both start from the a premise that words have meanings and those meanings are fixed when they're written down and they don't evolve over
• 04:30 - 05:00 time and that's true whether you're reading a constitution or a cookbook or Shakespeare or a poem or anything else and I I suppose the reason I'm an originalist is I think that's how language works and if we don't have fixed meaning then in my view we don't in any meaningful sense of a constitution if the Constitution can change based on what judges would like it to mean or how they think it ought to evolve uh that's not that's not particularly useful written text at all it doesn't constitute the government it
• 05:00 - 05:30 it most uh provides words that courts can manipulate to make them mean whatever they want so that's what led me to be an originalist great thank you so much for for putting it on the table so clearly and uh uh would you describe what would you use a label to describe yourself and and what would it be what is your interpretive uh phonology that you prefer I agree with
• 05:30 - 06:00 attorney um whose job is to convince courts that my client is correct um whatever it takes to win is what I am in favor of in terms of what goes into the brief but you know on a personal level and I I should perhaps say that the views that I am expressing today are my own they do not represent necessarily the views of the District of Columbia Office of the Attorney General um but as a personal matter I I am a bit
• 06:00 - 06:30 more flexible I'm a little bit more of a pluralist um I do believe in starting with the text because the text is the law and the most meaningful sense but I uh do not end with the text when I think about a statute um as you noted I'm I'm open um as the courts in front of which I practice are generally open to thinking about things like um broader context about the problem that the statute is meaning to solve
• 06:30 - 07:00 um the consequences that might happen down the road if one interpretation or another were Advanced and in terms of originalism too I mean I I think to me it makes sense as a starting point but not necessarily as the point where you end especially when we're talking about interpreting is is a constitution that was meant to endure across time and so you know we can talk about what terms like Liberty meant at the founding or during Reconstruction
• 07:00 - 07:30 um but how they apply today in light of that meaning I think um can be a little bit more flexible than probably the mine run of originalists Might believe that's such a powerful way of putting the alternative to originalism and as you say those who embrace it on the court and they'd include Justice Breyer and Justice Kagan and Justice Sotomayor and Justice Jackson uh start with the
• 07:30 - 08:00 text Justice Kane once said we're all originalists now in the sense of beginning with uh text and history but not stopping there and including considerations like consequences pragmatism and precedent I should share that um Justice Breyer is writing a book about uh I think it's called against textualism and he and Justice Gorsuch our current chairs are going to convene in Washington for their first conversation about uh textualism versus its alternative so this will be a
• 08:00 - 08:30 warm-up for my moderating that very significant conversation and it just puts on the table uh friends something it's going to be amazing the the fact that this is where the action is now in law and I'll just say descriptively well let me ask you if you uh agree with this uh General flowers that you know they're they're of course were methodological debates before but now on on the now that on the court there is a strong majority that calls itself textualist
• 08:30 - 09:00 and originalist and uh there's a strong group of dissenters who don't Embrace that label the now this debate is more Salient than it ever was is that a fair statement I I think it is a fair statement I would add though that even even the dissenters as you call them also as you noted do uh consider themselves textualists in at least some sense and that they begin with the text and that is a change if you go look at Supreme Court opinions from the 1970s
• 09:00 - 09:30 um they do not start with the text they'll sometimes start with the legislative history and they'll never reach the text uh I think Justice Scalia was obviously transformative there but but many other justices as well uh have have really put the text at the Forefront even when they're not self-proclaimed originalists uh and because of that I think our jobs as Supreme Court litigators has changed no one would ever start a brief now without citing without without beginning with the text of the provision you're construing uh that again is a change from 40 50 years ago
• 09:30 - 10:00 in general vanzal you you cook for justice Kennedy when he was on the court people made their arguments to him there were Kennedy briefs because he was the Swing Vote and maybe less attention to text and original understanding just describe how the debate has changed now that the majority has changed I mean I I think that it has indeed changed it's more of an open field and if they're not being indefinite swing Justice in any given case and I think because as uh General
• 10:00 - 10:30 flowers mentioned there is this broad commitment to textualism you do see briefs invariably starting with that that doesn't mean that the briefs discount legislative history or other indicia that might be persuasive to at least some cohort of the justices I think now too though you you do see on both sides a lot more originalism to me in the last few years that's been really
• 10:30 - 11:00 the biggest change is that both groups that are arguing for what might be called a conservative outcome and those arguing from what might be called a progressive outcome are attempting to Marshal history in their favor in founding era history or Reconstruction Era history often um we see that in the affirmative action cases that were litigated this term both sides were really
• 11:00 - 11:30 in large part battling on the same textualist and originalist grounds in addition to leveraging precedent but sometimes that felt a little more secondary that's such an important description of the debate and just as you say both sides are now arguing vigorously about what text requires and what history requires in the affirmative action case of course uh there was a vigorous debate between uh the majority including Justice Alito in that case and and
• 11:30 - 12:00 Justice Jackson who jumped right in and talked had a different understanding of what the framers of the 14th Amendment intended when it came to race conscious uh laws well let's take a bunch of uh illustrative cases uh in particular Bostic for textualism ruin and Dobbs for originalism and then we want to talk about the major questions Doctrine as well because it was so Central to your vaccine case and also to the EPA case and and both describe the debate among and between the justices and then ask
• 12:00 - 12:30 what do you think of it so why don't we start with Bostic because it's the clearest example of a debate among the textualists in that case uh we had justice Gorsuch joining the Liberals in holding that the phrase because of Saxon the Civil Rights Act of 64 uh included discrimination on the basis of sexual orientation Justice Gorsuch said that only the written word is the law and all persons are entitled to its benefits but
• 12:30 - 13:00 there was a dissent from justices Thomas Alito and Kavanaugh and in particular Justice leader wrote the Court's attempt to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia but no one should be fooled the Court's opinion is like a pirate ship it sails under the textualist flag but what it actually represents is a theory of statutory interpretation the Justice Scalia excoriated the theory that Court should update old statue so they better
• 13:00 - 13:30 reflect the current values of society I I read it because I've got the text here uh General flowers describe what Justice Gorsuch held in Bostic and and why uh the dissenters uh thought he was not a convincing textualist sure absolutely I mean Justice gorsuch's approach to textualism I think it's fair to say is maybe more literalist than others and that sets up what I think is the most interesting debate in that case which is in my view between Justice gorsuch's
• 13:30 - 14:00 majority opinion and Justice Kavanaugh's descent which really uh I think lays out most clearly his view of what the textualist project should be but let me start with with the question which was what did he say the law prohibits I'm simplifying a bit here but discrimination because of sex and um relying on frankly unprecedented Justice Gorsuch said the because of their means but for a Cause and in his view if you fire someone for
• 14:00 - 14:30 being gay or for being transgender then sex is in some sense a but for cause because if they were of the opposite sex but behaved in all the same ways were sexually attracted to the same people you would not have fired them and so he said we have the that but for definition of because of we can plug in uh we can we can answer the question uh but for your sex would you have been treated differently and uh in his view
• 14:30 - 15:00 the answer should be yes Justice Kavanaugh's point was that it shouldn't be so robotic when you do original public meaning you should be asking what would the phrase because of sex mean to an ordinary English speaker and and I happen to think he's right about this an ordinary English speaker who found out a friend was fired for being gay would not say they were fired because of their sex uh if they were fired for being transgender it wouldn't say they were fired because of their sex they'd say they were fired because of this other trait and I think the reason
• 15:00 - 15:30 the original meaning in in Justice Gorsuch just literalist interpretation arguably at least come apart is what Justice Alito focuses on more in descent which is that but for test makes sense when you can hold every trait but one constant so if you imagine for example you the person's fired they say because they were an African-American well you can imagine that they were of A different race and then say would they have been fired that doesn't quite work as cleanly when you're talking about sexual orientation or uh gender identity
• 15:30 - 16:00 because when you change one trait you're changing two you're changing both the person's sex and their sexual orientation or their sex and their gender identity they move together so the butt four test doesn't work as cleanly um but circling back I guess to what the real debate is I view it more as as I think that the the contrast has drawn out more in the discussions between Gorsuch and Kavanaugh who have the sort of literalist uh approach on the one hand versus a more contextual ordinary speaker approach uh
• 16:00 - 16:30 on the other that's a great way to describe the differences and I'll restate it to make sure I understand it the literalist approach which just asks what the words literally mean and those that would view the words in context to figure out what an ordinary Observer would understand them to mean general vanzile what do you make of this debate and does it um what will Justice Breyer say about it the Liberals joined Justice Gorsuch but Justice Breyer thinks the purpose is
• 16:30 - 17:00 always to figure out the intention of the law which is why you look at the words in context and purpose matters how does that fit into this debate and and what does it say about whether textualism is all that constraining at all that is an excellent question so obviously if you consider yourself to be a purposefist uh you might start with the question of what is it exactly that Congress was getting at when it passed Title VII and you can Define that at a
• 17:00 - 17:30 number of different levels of generality I mean obviously it was aiming to eliminate or at least severely curtail discrimination and then there's the question discrimination of what kind um and so you know I think I think it is interesting um you could probably answer that question one of two different ways depending on the level of generality at which you're examining the purpose um and so too with the text with this
• 17:30 - 18:00 debate between sort of literalism versus the meaning of the provision as a whole to the guy on the street when when the relevant statute was passed uh and and I I suppose I would take a little bit of issue with calling justice gorsuch's interpretation literalist I mean I think originalism textualism they all sort of have to acknowledge that while the
• 18:00 - 18:30 meaning of words are fixed how they apply to change circumstances to circumstances that in some cases may not have been contemplated or even imagined if you think about some of the Second Amendment cases right how you apply those same words and those circumstances I think there needs to be a little bit of flexibility there you're honoring the meaning of the words but in applying them to a new circumstance there there's going to have to be a
• 18:30 - 19:00 little bit of adaptability I guess I guess an imagination maybe but I think every textualist would agree that uh that the laws will apply text will apply to circumstances that were not foreseen the fourth amendment applies to searches of automobiles even though automobiles obviously were not in the framers Minds as smart as they were um so I don't think that's really a problem with textualism it just makes application more different more difficult I think the people who have a
• 19:00 - 19:30 lot of explaining to do with Bostock are the purpose of this to join the majority opinion because it I don't I think it's very difficult to argue that Congress when it passed Title VII was meaning to protect against discrimination based on uh sexual orientation or gender gender identity I think the the latter idea probably wouldn't have even made sense to them at the time and the former was quite controversial and remained controversial for years thereafter so those defending the purpose of this approach I think have quite a bit of work to do when it comes to the majority
• 19:30 - 20:00 decision in Bostock which is probably why the majority uh opinion in addition to the fact it was written by Justice Gorsuch doesn't make use of that methodology at all and what might the purpose of a saying well again I mean I think it goes back to a level of generality I think um General flowers is probably right if you put the exact question to the folks in Congress or even the um people who voted for those Representatives at the time uh the Title
• 20:00 - 20:30 VII was passed you know is this meant to protect against discrimination on the basis of sexual orientation um or gender identity um you know is it meant to cover that really they would probably say well no um but if you ask them is it broadly meant to um put people on a Level Playing Field regardless of their gender um and how they present in the workplace
• 20:30 - 21:00 I think the answer would be yes so again I mean I think in a lot of these debates ultimately it is that level of generality and the sort of amount of specificity that's being demanded that makes the difference very much so just so I understand and this is excellent preparation for my moderation of the debate in DC do General flowers was it justice scalia's position that purpose didn't matter is that why you should
• 21:00 - 21:30 never look to legislative history and you only look to the words and how they would have been understood in context regardless of what the purpose of the legislature was is that right uh I I qualified a little bit he was fine with looking at sort of the objective purpose of the law what is this what is this law achieving on its face what he was not concerned with and what he in fact thought was an illegitimate consideration was what did the men and women who voted for this Bill in Congress intend to accomplish with it that wasn't of concern to him but he did
• 21:30 - 22:00 think you could you know you could look at a law and say um this is this is 10 this is intended to allow remediation for certain environmental messes and so uh that should that should guide us in interpreting an environmental statute when we ask if such uh damages are available in a particular case so you can have a broad objective purpose discernible from the text but not the subjective intentions of the
• 22:00 - 22:30 people who voted for it exactly and I think it's one of the first cannons in the uh in his reading Law book on statutory interpretation in fact is that the objective purpose of a statute is a legitimate consideration but not the subjective intensity legislators there are of course many responses to Justice Scalia by Justice Breyer by judge Robert katzman who I guess has the main book on statutory interpretation uh the late judge catchment of the very blessed memory um wrote a superb book
• 22:30 - 23:00 which he discussed here at the center but now that we're just you're helping me me uh understand these debates general vanzile what was the response of Justice scalia's critics in particular about the consistency of his view of statutory interpretation and his Embrace of originalism in the Constitutional context well I mean I I think I think there's both um a critique that can be applied to originalism and then there's the
• 23:00 - 23:30 response actually of the originalists um which should be totally candid I actually find to be persuasive um so you know there there is a criticism um of textualism of textualists who also adhere to originalism in the sense that oh well you know if you're not willing to consider the subjective intent um or words of members of Congress who voted for laws then why are we here lionizing the founders and what they thought
• 23:30 - 24:00 um and I think the traditional rejoinder is no no I mean even originalists are not necessarily looking to what the founders subjectively thought or believed they are looking to original public meaning and um it's it's not uh unusual or unwarranted to to think that the founders might have also had some sense of what the original public meaning of these words was I would argue
• 24:00 - 24:30 that also applies to members of Congress when we're talking about textualism and statutory interpretation right and um as a result maybe you don't prioritize what legislators said or what a report contained over the text itself but surely it's some indication of what some very smart people who looked at the problem very carefully thought time and so to me that's why that sort
• 24:30 - 25:00 of evidence is relevant when you're broadly trying to understand what it is that a statute means or what it is that a statute does maybe you don't prioritize it but it certainly seems to be relevant evidence and some of it is more relevant than others right a report that was voted on should probably get a little bit more weight than a floor statement by some member of the House of Representatives who may or may not have had anything to do with writing the Bill and I also think legislative history
• 25:00 - 25:30 became less useful the more it was used because once courts set the precedent that what you say on the floor or what's on a report can inform the meaning of a bill then legislators knew and there's even records of this that they could they could agree to a vague provision then go down on the floor of the Senate give a speech and later litigants could use that to say see this is what they meant all along even though it's only one person and if it had actually been in the bill it never would have ever would have passed so I think that
• 25:30 - 26:00 argument works better if you're talking about legislative history and I'm not convinced of It Anyway by the way but it in so far as it works I think it works for the period before the court was actively considering such evidence better than it does today great this is a superb uh seminar on sort of textualism 101 and what I hear you both saying is that for justice Scalia as as the one of the most prominent first originalist and textualist original public meaning mattered for both the Constitution and
• 26:00 - 26:30 for statutes but Justice Scalia felt that legislative history was unreliable evidence of original public meaning whereas the framer's intentions and the in the convention and in particular The Federalist Papers might be more reliable evidence for the Constitution but just one more round on this I to prepare for this panel look went back and read Ed meese's speech in 1985 where he embraced a jurisprudence of original understanding which positives the opening Salvo and what led
• 26:30 - 27:00 to an originalist textualist majority on the court It Was Written he acknowledged with the help of Gary McDowell the late uh uh scholar who wrote a great book on this debate and McDowell acknowledged that the project began by focusing on original intentions and on the framers but evolved into one that focused more on original public meaning do I have that right yeah I think that's absolutely right yeah okay all right and um
• 27:00 - 27:30 uh well then now let's put on the table the leading originalist uh decisions um in recent uh terms uh Dobbs and and Bruin let's begin with Bruin because it's such a powerful example of the Liberals and conservatives disagreeing about what original understanding required and the majority of course held that Justice Thomas focused on the history and traditions of firearm
• 27:30 - 28:00 regulations in five historical areas medieval to early modern England the American colonies anti-bound America reconstruction the late 19th and 20th centuries and he found no historical analogs for the New York law and concluded there was no support in history and tradition for a Prohibition on public carry for firearms used in self-defense and Justice Breyer and the dissenters accused Justice Thomas of playing whack-a-mole with history and tradition and Justice Breyer had a memorable line he said uh
• 28:00 - 28:30 the court is picking friends out of History's crowd laws addressing repeating crossbows launch gays Dirks dags skeins skill ladders and other ancient weapons will be of little help to courts confronting modern problems so both in your great descriptive mode what are the majority Holden and what are the dissent object and what do you think so I think they both started from the premise that Heller was good law so Heller is the case in which the Supreme Court held that the Second
• 28:30 - 29:00 Amendment confers an individual right there is an individual right to bear arms uh keeping bear arms from the perspective of an originalist I think it's fair to say in fact Keller says this when it says the right to to keep and bear arms shall not be infringed it is referring to a pre-existing right in other words the Constitution doesn't confer the right so much as it recognizes and protects the pre-existing right and so Justice Thomas would say that to determine what that pre-existing right is we can look to what rights to keep
• 29:00 - 29:30 and bear arms people were understood have the time what did what were people allowed to do or not allowed to do with Firearms at the time the second amendment was ratified and at the time it was incorporated against the states through the 14th Amendment and so I see some caricatures in the news that they adopted history for history's sake they just you go back to the gun laws of 1789 just cuz that's not right what with the reason they're looking at those is to say what was the meaning of the right to
• 29:30 - 30:00 keep and bear arms and one way you'd try to understand that is look to state constitutions that had similar language and what were people understood what rights were they understood to have uh Under the Umbrella of that right to keep them bear arms so that's how he would have approached it uh The Descent or that's how he did approach it The Descent approached it uh I think it's fair to say through a more pragmatic lens where they accept hell or they accept there's an individual right but are critical of uh the practicality of applying that test I think it will be difficult for courts to do uh in a lot
• 30:00 - 30:30 of circumstances and then also took issue with the application of the history in this particular case uh to the lot issue which was New York's May issue law for for carrying concealed firearms they thought there was more historical support for that than the majority was giving them credit to I think that debate's less interesting for our current purposes because that's that's just about who's right or wrong accepting the methodology for me the more interesting question is whose methodology is correct in the first place uh will come as a surprise that I
• 30:30 - 31:00 agree with Justice Thomas's uh but you may have a more sympathetic uh spokesman for the dissenting view in my colleague to my right of course I'm very eager to hear what do you think is convincing but spell out the dissent's objection to the majority on its own terms they said you're just moving the historical periods around if you look at 1868 when the 14th amendment was ratified there was broad support for prohibiting public
• 31:00 - 31:30 carry which continued into the Progressive Era and then became more restrictive earlier and later and they basically said the majority was being selected and picking their historical window is that is that basically right I think I think that's accurate and I think it illustrates something about this methodological debate right one of the virtues of originalism is allegedly that it is more fixed and discernible and knowable and I think what we're seeing particularly in lower courts in the wake of Bruin is
• 31:30 - 32:00 that history is looking at history is really not all that different than looking at legislative history in that you can look out over a crowd and pick out your friends um and so when you're using history as the Touchstone I think you do have to be very wary about that and you can see I mean some of the historical moves that
• 32:00 - 32:30 The Descent criticizes the majority for you know discounting three colonies laws is perhaps not being enough ignoring certain or discounting certain State Supreme Court decisions um possibly sort of changing the meaning of the statute of Northampton which is a very old statute that kind of had analogs in the colonies and then in the early States
• 32:30 - 33:00 um you know there are some very legitimate disagreements there about what history shows and I mean I beyond that I might even go a little bit further and ask the question whether Bruin really even is a fully originalist opinion in the sense that one scholar has called it original ish which seems about right to me it might seem
• 33:00 - 33:30 paradoxical given how moored it is to history and tradition um but what one of the things that Bruin did was break the Second Amendment inquiry down into two steps the first step being so what does this text say um does it cover this conduct and then the second step which places the burden on the government who's trying to regulate um the conduct in question the Second Step then becomes this historical inquiry
• 33:30 - 34:00 um where you're sort of counting different historical restrictions and asking are they analogous enough are they pervasive enough and that second step if you're an original public meaning originalist the question you'd probably really want to ask there is well well what did people think um that this pre-existing right to bear arms meant what did people think that it
• 34:00 - 34:30 constituted broadly either at the time of the founding or at the time of reconstruction that's sort of Up For Debate which is the most relevant time period um and if you look at that question if you look at it through that lens it's not entirely clear that what people thought was permitted or could be prohibited is entirely governed or um is evidenced by what restrictions happened to exist either at the time of
• 34:30 - 35:00 the founding or at the time of reconstruction so just to give an example right um I am from the District of Columbia we have not yet banned electric scooters annoying them they may be you find them on every street corner you can rent them uh they may be a hazard to Public Safety and public health but I thought you're gonna say they're an arm they're there um no I wouldn't argue that they're arms but that's that would be an interesting debate um we haven't we haven't banned them
• 35:00 - 35:30 does that mean that we couldn't ban them that the constitution would prevent us from doing so of course not it just means that we haven't maybe for reasons of administrability maybe for reasons of policy um there can be a whole host of reasons why something might not be regulated um that in and of itself probably isn't the best indicator of original public meaning it might be an indicator but I don't think that it makes sense to treat
• 35:30 - 36:00 it as the sole Touchstone which is what Bruin essentially now does thank you for putting that critique on the table and uh if you would General flowers respond to it General benzos said that the critique is if you're an originalist and there's a text you ask what was the original public meeting in 1789 or 1868. you don't look at everything that could have been enacted but wasn't or what happened in between those are the two time frames and the majority wasn't doing that what's the response of Justice Thomas I think his response would be that the first step is
• 36:00 - 36:30 does the regulation involve the keeping or bearing of arms so now you're dealing with the text and then to figure out whether it falls outside of that right you would look for some evidence of that which uh it could I suppose it could include other things but the easiest or the most readily available evidence will be the laws that existed at the time what were people prohibited from doing uh at least then you see a practice that is not prohibited across a wide uh array of jurisdictions with similar
• 36:30 - 37:00 constitutional protections that's some pretty good evidence that the the the writing question did not was not understood to fall outside of the pre-existing right but and I think in some ways though this really goes to the virtue of originalism which is it can be falsified if you every originalist jurist gives you a way to score their work um because being an originalist of course doesn't mean you'll get every case right uh and and it gives it provides a basis to analyze the opinions
• 37:00 - 37:30 to determine whether they're right or wrong it's much harder to do that when you're dealing with purposivism or some other more open-ended approach where judges are try aiming to make policy instead of aiming to uh to determine what the text meant and just one final beat on Bruin and then we'll do dabs the um liberals say that the conservatives are being inconsistent from case to case about what the time frame is and Justice Barrett has acknowledged that this is a
• 37:30 - 38:00 debate among the conservatives about the relevance of what she calls liquidation or subsequent historical practice or do you detect the conservatives are undecided about this and what what are the Liberals say in terms of which time period is perhaps most relevant yeah I mean um there seemed to be a strong lean uh in the text of Bruin towards the founding era being the most relevant evidence um but it did expressly leave that question open and there is an
• 38:00 - 38:30 ongoing scholarly debate about it um the majority was able to leave the question open because it said well whatever period you look at the result is the same um I I think that uh most progressives and there have been a number of briefs filed in lower courts towards the sand would say well actually the Reconstruction Era is actually the most pertinent period certainly as to State prohibitions because the Second
• 38:30 - 39:00 Amendment only applies to the states through the 14th Amendment and so that is the most relevant time period and obviously we want the Second Amendment to be interpreted consistently whether it's applied to the states or to the federal government or to something like the District of Columbia and so in a sense that was almost a reenactment of the Second Amendment um a sort of read the revification of it that kind of made the mores and
• 39:00 - 39:30 understandings of that time period both relevant and perhaps decisive and just to set up Dobbs another sort of informational question I had thought from law school that if there was a text and you were an originalist you asked what was the original public meaning in 1789 or 1868 but if there wasn't a text as in Dobbs and you're looking to tradition then you look at tradition from the founding to today is that wrong
• 39:30 - 40:00 uh so I I think the question really goes to what is the substantive due process Doctrine require and frankly I think this is part of the problem with the doctrines it's I have a difficult time saying with certainty what it requires um in glucksburg the court said you look to what in determining whether there's a substantive due process right you require a long recognized tradition of the rights existence so I don't think that would require focusing strictly on the time of uh of the ratification
• 40:00 - 40:30 um I also don't think it would allow ignoring that it would require the entire period there to be this long recognized right I think the use of history in Dobbs is different than the use of history in Bruin because in Bruin they're trying to Define what is the right to keep and bear arms that everyone is acknowledging exists and the substantive due process context there's a debate about whether there even should be such a thing a substantive due process and to sort of limit that Doctrine to stop it from
• 40:30 - 41:00 being something where judges can willy-nilly make up rights the court in glucksburg announced this test where well at least if there's not a very long established tradition throughout American history or for much of American history of a practice then we're not going to have an unenumerated right so I think that I see the use of history there as limiting the judge's power to find a right that's not in the text versus defining the nature of a right that is in the text understood and how would you articulate
• 41:00 - 41:30 the difference between the glucksburg approach to substantive due process rights and the originalist approach and Bruin in terms of this what town time frame is is relevant is it right that I think it is as general flower says that if you accept a substantive due process right glucksburg says look to a long-standing tradition from the founding to today is that is that right I think that's right glocksburg is sort of um I view Justice alito's Embrace of that as as being an odd to precedent more so than anything else I mean he does
• 41:30 - 42:00 start his opinion by talking about the text but ultimately is a little bit agnostic about what text it is that is even being interpreted whether it's the term Liberty due process uh privileges or immunities something entirely different we don't really know um in terms of how glucksburg contrasts with originalism yeah I mean I think if you were going to look at it from an originalist perspective you would you
• 42:00 - 42:30 would start with the text of the Constitution you would identify that precisely and then you would figure out what folks thought that meant at the time of the founding and then you have this sort of other option that the dissenters Embraced looking at terms like Liberty um and asking not just what it meant at the founding but what it means today and allowing for a bit of um change and sort of growth in terms of
• 42:30 - 43:00 what we think a term like that an intentionally broad term would cover I mean obviously at the founding women didn't or you know even in reconstruction women didn't have rights the same way that we have equal rights today and so if you're kind of looking at this inquiry on a very specific level Frozen in Time I think one of the concerns expressed by the dissenters um and and you know luxberg has the same
• 43:00 - 43:30 problem as as uh very kind of literal originalism does or frozen originalism does is it doesn't I mean it it leaves certain people out um of the equation arguably and so um if we're putting that third option on the table I mean I think that that is what the dissenters would urge us to look at is kind of what what do these terms mean today and do we allow for them to evolve what do they mean today and do we allow them to evolve well General flowers
• 43:30 - 44:00 let's just put on the table the the Dobbs majorities uh reading of text history and tradition which focuses on the fact that when the 14th amendment was ratified two-thirds of the states banned abortion throughout pregnancies tell us about that argument right so uh I think if we just look at straight as an original matter does the Constitution as originally understood protect the right to an abortion I think pretty much everyone would concede that a straight A a honest originalist would say no it
• 44:00 - 44:30 doesn't at least if you put Preston to the side but then there's the precedent complication here so once you have president on the table you're asking Not only was Roe v Wade kcv uh Planned Parenthood wrong but are they so wrong are they so destructive that they should be overruled um and I the as I read Dobbs the reason that Justice Alito goes to the history is not only to show that there was origin as originally understood no right
• 44:30 - 45:00 to an abortion but that the right was so unfounded so lacking in history historical support in our nation's Traditions that it's it's not just a misapplication of substantive due process of the glucksburg test but in his view at least an egregious one which which justifies in it along with other concerns actually overruling the precedent rather than saying well although it was wrongly decided it was decided and we're going to stick by it the court said that egregiously
• 45:00 - 45:30 incorrect decisions are less deserving of Starry decisis so I I see the the history there is feeling that sort of dual task which is helping to define the or looking to see if one could make a plausible argument for a substantive due process right I think under glucksburg it's very very hard to do and then using that to ask uh should we retain the president in the first at all and as you say that language about it being egregiously wrong which comes from Justice Kavanaugh's uh test for
• 45:30 - 46:00 overturning uh precedent to the roanoke's case it was found to be uh dispositive here uh General vanzal the Liberals in Dobbs did say the history was more complicated than the majority suggested including the fact that until basically the Civil War the common law did not prosecute pre-quickening abortions um criminally tell us about their historical arguments and what do you think that says about the determinacy of originalism Dobson yeah I I mean that is
• 46:00 - 46:30 exactly the argument that pre-quickening abortions is a historical matter weren't traditionally regulated um and if we were living in a world where Bruin governed as precedent you might think that that lack of Regulation had dispositive meaning um but not so in this particular context um so I they use that in combination with
• 46:30 - 47:00 this reasoning about sort of Liberty and more recent precedence on substantive due process to um push back against and disagree with the majority but I think it's this you see this same recurring pattern in both Bruin and Dobbs where different groups of justices are looking at the same history and drawing really different conclusions about that same history which I think at the very least raises
• 47:00 - 47:30 some questions about the determinacy of an approach like originalism now now maybe it would work maybe you can verify it if we all had time machines and could go back and Survey people on the original public meaning of these Provisions but we don't and so what we're left doing is sifting through um historical records that may change new ones may resurface that we may have
• 47:30 - 48:00 different interpretations of in their own right and trying to draw our best conclusions from those and depending on who is reading the historical record you can end up with potentially very different results it's such a this is a great debate and what what is the response to the claim that the whole point of originalism is supposed to be to determinacy and constraining judges personal preferences but uh the claim is that far from constraining it's leading
• 48:00 - 48:30 to a lot of indeterminacy and malleability that is empowering judges to reach the results they like what's the response I think the response is the one Justice Glee would give you tell the story about the the two hunters and they're chased by the bear and one Hunter stops and ties his shoes and the other guy says what are you doing there's a bear chasing us you have to run he says I don't have to outrun the bear I have to outrun you and I think the original is the same answer we don't have to outrun the living constitutionalist we don't have to sorry we don't out we don't have to show that
• 48:30 - 49:00 our Theory works perfectly we just have to run outrun the living constitutionalist and show that it works better than that and I do think it works better at providing determinacy than uh approach that allows judges to evolve the Constitution uh as they like this at least gives us a concrete question to ask and there'll be difficult cases there'll always be difficult cases there will also be some very easy cases and again I think as an original matter it would be impossible to argue that there if from a purely originalist perspective
• 49:00 - 49:30 without precedent there was a right to abortion um I have a hard time even imagining how it would go because the due process clause wasn't understood to confer substantive rights at all um so that's an example of a case that from a purely originalist perspective it's very easy the complication there is Starry decisis in in the Dobbs case not in my view originalism that's such a great response from Justice Scalia I had the honor of having dinner with him once because A friend brought us together and after a couple drinks I screwed up my courage
• 49:30 - 50:00 and asked the question that I've been you know as a law professor thinking about for a while Justice Scalia you know the whole point of uh Brown is Brown versus Board of Education is you say you're a textual it's an originalist but people stood up in the Congress that passed the 14th Amendment and said don't worry this isn't going to apply to schools you know what's what's your response how can originalism accommodate this hey pause for a sec and then threw back his head and said you know what no theory is perfect which is a version of the bear story so what about that as a
• 50:00 - 50:30 response not not perfect but better than the Alternatives in terms of constraining Judges well I mean I I don't I think it remains to be seen if it's better than the alternative at constraining judges I mean certainly we have seen a number of you know supposedly originalists and textualists um precedents kind of turning out the way you might predict just by counting the number of justices who are appointed by a certain party now um you know I think Bostock is a notable
• 50:30 - 51:00 departure from that hopefully we will see more departures that are are sort of in line with whether it's the textualist or originalist ideal that maybe don't neatly line up with politics and ideology but I mean I I think the proof will be in the record and and in you know I mean I think you look to it one of the more recent cases that um uh that has kind of thrown the spotlight on textualism again from last term West Virginia versus EPA there you had a
• 51:00 - 51:30 solidly self-professed textualist majority not really addressing the text of the relevant provision until page 28 of a 31-page opinion right and so I mean if these methodologies are applied consistently um yeah I I think that they could impose some reasonable constraint but I don't know that I don't know that constraints for the
• 51:30 - 52:00 sake of having constraints necessarily justify not looking at all of the available evidence when it comes to determining the meaning of the Constitution or of a statute in other words I mean I think um textualism and originalism if you take a hard line on them they're very constraining but is that an unvarnished virtue or by leaving some evidence of meaning off the
• 52:00 - 52:30 table does it actually make us less likely to get to the truth um assuming there is such a thing of whatever the statute or constitutional provision means I mean I I don't know I think that there has been a robust debate on that I think that debate will continue um but in my mind there's there's not a clear winner one thing we can agree on is Originals need to practice what they preach or I mean it won't constrain if they just
• 52:30 - 53:00 refuse to be constrained now I personally think it does constrain and will work because I've seen it done I there's one case in particular I can't say which case I remember as a clerk all four of his clerks arguing with Justice Scalia telling him the text requires this and he really didn't like the outcome and he played devil's advocate for a while and eventually he threw down the briefs and he said congress's fault garbage in garbage out they write a stupid statute they get a stupid result it was very refreshing to see that that he really engaged with the arguments he pushed back and he said you
• 53:00 - 53:30 know what the law requires this idiotic result and that's how I'll vote um a great example will you you put on the table uh Jennifer's of the EPA case and as you suggested that was one in which Justice Kagan called the majority textualish to use the I think it was originally heard great phrase because the major questions Doctrine doesn't appear in the text so maybe say more about the case against the major
• 53:30 - 54:00 questions Doctrine and then General flowers will ask you to uh well I mean um I think that there is a very strong textualist case against the major questions Doctrine so as expounded in that case the major questions Doctrine basically says that if if an agency an administrative agency is doing something big either resolving a major political question um or making a huge promulgating a rule that has a huge
• 54:00 - 54:30 economic impact then in order for that rule to be valid Congress must have made some sort of clear statement delegating that authority to the agency and um you know the starting premise of the major questions Doctrine really is sort of what did the agency do and do we think it's major enough to trigger this what is now I think a clear statement role um and that's in Stark relief to the
• 54:30 - 55:00 usual textualist approach of well what does the statute stay uh let's start with the text let's look at some dictionaries let's look at the structure and the context and figure out if there's an unambiguous meaning here um and and so you have this funny dialogue between the majority by Chief Justice Roberts and the dissent by Justice Kagan where you know Justice Kagan and descent who's starting with
• 55:00 - 55:30 the dictionaries and kind of reasoning from text and context um and I think canons like that especially sort of newly announced substantive canons um should give textualists some heartburn there are a number of textualist Scholars who've argued against the major questions Doctrine um and I happen to think that they are right now I think the majorness of a question may have something to say or
• 55:30 - 56:00 some role to play if you're talking about a genuinely ambiguous statute you know would Congress have permitted an agency to do something this huge or transformative through really murky language I mean I think it's fair to consider it in that sense um but as a clear statement rule that sort of precedes the text and context inquiry I don't think it makes much sense so much for that now the court embraced the major questions Doctrine both in the
• 56:00 - 56:30 EPA case and in the National Federation of Independent businesses versus Department of Labor case which you won General flowers congratulations first of all on that impressive Victory and in that case Justice Gorsuch in particular explicitly linked the major questions Doctrine to the non-delegation doctrine and defended it as a textualist what was his defense and why do you think he was right right so I was going to say I think Justice Gorsuch has the most sustained defenses both in that case and in the West Virginia case um and I happen to agree with them so
• 56:30 - 57:00 when we ask if it's textualist I think we should ask uh first which which text are we talking about and I think we start with the most foundational one which is the one they wrote over there in Independence Hall and the first section of the first article says that all legislative power is vested in Congress we have greatly departed from that original meaning where we now allow agencies to promulgate the vast majority of the rules that govern uh private citizens private companies
• 57:00 - 57:30 um the non-delegation doctrine is really just a fancy way of saying Congress has to be the one that make the rules that govern the public but we've really the non-delegation doctrine today doesn't have very much teeth the way it's applied is that as long as Congress announces an intelligible principle somewhere in the uh in in the statute that gives a little bit of guidance to the agency then constitutionally it's fine to do that the major questions Doctrine can be justified in light of the non-delegation
• 57:30 - 58:00 doctrine in two different ways the first is constitutional doubt the second is of this far no further principles I'll try to lay those out it probably is the case at this point that we cannot go back to a full-throated Embrace of non-delegation and in other words honestly applying uh the first section of the first article of our constitution there's just too many agencies that have promulgated too many rules in throwing all that out would be I think too disruptive uh it's just not going to happen whether it should or not the major questions
• 58:00 - 58:30 Doctrine says that at least before we find that Congress gave away its legislative power to an agency in these very very big fields that are very significant we're going to require Congress to say so exceptionally clearly and if they don't say so exceptionally clearly then we're going to say that they never gave the agency the power to do that in the first place and that brings me back to the two defenses I had the first thing that does is it avoids doubt about whether the delegation does violate even the flimsy non-delegation
• 58:30 - 59:00 Doctrine we have today it avoids putting the statute in constitutional doubt people can debate whether the Constitutional doubt Cannon is a good rule or a bad one but it's been around a really long time it's not very controversial in the major questions Doctrine helps enforce that but there's also this this far no further Point judge bork used to say or he had a book actually where he said judges live on the slippery slope of analogy and they're not supposed to ski it to the bottom and I think of that I think of that metaphor and think well
• 59:00 - 59:30 one one way you might reasonably apply the brakes is to say we've we've pushed this Doctrine so far beyond what the Constitution permits that we're never going to be able to go back we can't get back to the top of the hill but we can at least say we're not going to go even further down the hill and just completely uh abandon the text altogether and allow the doctrine to completely override the Constitution so with the major questions Doctrine what they're saying is agencies shouldn't be getting this power in the first place we
• 59:30 - 60:00 may not be able to go all the way back and undo all the damage that's been done already but we can at least say that we're not going to allow our failure to take seriously the first section of the first article we're not going to allow our failure to take that seriously to be extended to allow agencies to resolve even these immensely significant questions like whether 80 million Americans can be forced to get a vaccine uh or whether all coal power plants can be shut down and replaced with some other form of of cleaner energy so that
• 60:00 - 60:30 I think is just this course it's just defense and therefore mine as well uh we're out of time but to preserve the balance in this extremely high level thoughtful and civil discussion uh the last word General vanza will be to you I I do think that that is the best justification for the major questions doctrine that that said that said um if what it's really about is non-delegation I think you know do
• 60:30 - 61:00 that work honestly and through the non-delegation doctrine [Laughter] um uh last time they weren't so I guess that would be my reminder I want to thank both of you General flowers and general vanzal for giving us an example at the highest level of what a thoughtful non-partisan discussion about methodology is it was detailed it was wonky I know each of you was following
• 61:00 - 61:30 every word because it was so high level uh but it's it's a model for the way that law is supposed to operate and we're honored at the Constitution Center to bring you together in this incredible space so uh impressed and nag for being true to your mission of bringing together AGS of different perspectives uh for this kind of discussion and much looking forward to our work together in the years ahead please join me in thanking our panelists thank you thank you