by Neil Gorsuch
First principles aside, the government suggests that at least this Court’s precedents support adopting a less-than-fair-notice standard for civil cases. But even that much I do not see. To be sure, the Court has sometimes “expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” But to acknowledge that truism does nothing to prove that civil laws must always be subject to the government’s emaciated form of review. In fact, if the severity of the consequences counts when deciding the standard of review, shouldn’t we take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies. And not only are “punitive civil sanctions…rapidly expanding,” they are “sometimes more severely punitive than the parallel criminal sanctions for the same conduct.” Given all this, any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.
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WITH THE FAIR NOTICE standard now in hand, all that remains is to ask how it applies to the case before us. And here at least the answer comes readily for me: to the extent it requires an “ordinary case” analysis, the portion of the Immigration and Nationality Act before us fails the fair notice test for the reasons Justice Scalia identified in Johnson and the Court recounts today.
Just like the statute in Johnson, the statute here instructs courts to impose special penalties on individuals previously “convicted of” a “crime of violence.” Just like the statute in Johnson, the statute here fails to specify which crimes qualify for that label. Instead, and again like the statute in Johnson, the statute here seems to require a judge to guess about the ordinary case of the crime of conviction and then guess whether a “substantial risk” of “physical force” attends its commission. Johnson held that a law that asks so much of courts while offering them so little by way of guidance is unconstitutionally vague. And I do not see how we might reach a different judgment here.
Any lingering doubt is resolved for me by taking account of just some of the questions judges trying to apply the statute using an ordinary case analysis would have to confront. Does a conviction for witness tampering ordinarily involve a threat to the kneecaps or just the promise of a bribe? Does a conviction for kidnapping ordinarily involve throwing someone into a car trunk or a noncustodial parent picking up a child from daycare? These questions do not suggest obvious answers. Is the court supposed to hold evidentiary hearings to sort them out, entertaining experts with competing narratives and statistics, before deciding what the ordinary case of a given crime looks like and how much risk of violence it poses? What is the judge to do if there aren’t any reliable statistics available? Should (or must) the judge predict the effects of new technology on what qualifies as the ordinary case? After all, surely the risk of injury calculus for crimes like larceny can be expected to change as more thefts are committed by computer rather than by gunpoint. Or instead of requiring real evidence, does the statute mean to just leave it all to a judicial hunch? And on top of all that may be the most difficult question yet: at what level of generality is the inquiry supposed to take place? Is a court supposed to pass on the ordinary case of burglary in the relevant neighborhood or county, or should it focus on statewide or even national experience? How is a judge to know? How are the people to know?
The implacable fact is that this isn’t your everyday ambiguous statute. It leaves the people to guess about what the law demands—and leaves judges to make it up. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation. No amount of staring at the statute’s text, structure, or history will yield a clue. Nor does the statute call for the application of some preexisting body of law familiar to the judicial power. The statute doesn’t even ask for application of common experience. Choice, pure and raw, is required. Will, not judgment, dictates the result.
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NO ONE SHOULD BE surprised that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it. A government of laws and not of men can never tolerate that arbitrary power. And, in my judgment, that foundational principle dictates today’s result.
3.
THE JUDGE’S TOOLS
When I was in law school, many professors and students seemed to assume that in disputes over a statute’s meaning a judge should turn to its legislative history, seek to discern the law’s purpose, and then do whatever is necessary to promote that perceived purpose in the case at hand. I might be exaggerating a bit—but not by much. We were fed a healthy diet of cases in which judges themselves worried that paying too much attention to a statute’s terms might risk producing results “at variance with the policy of the legislation.” When it came to constitutional law, things were not much different. We were told that the Constitution is a “living” document. Most everyone seemed to agree with Justice Felix Frankfurter’s view that “the words of the Constitution…are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life.”
I remember the first time I heard anyone seriously challenge this kind of thinking. It came when Justice Scalia, still new to the Supreme Court, visited my law school to deliver a lecture entitled “The Rule of Law as a Law of Rules.” Although nominally about the importance of avoiding balancing tests in the law, the lecture was suffused with the conviction that when charged with interpreting congressional statutes and constitutional texts, judges should follow the law as written and originally understood, and that judges who seek to do anything else act inconsistently with the judicial function in our system of separated powers. It was a breath of fresh air, inspiring, like little I had heard in my classes.
Still, I don’t think I fully appreciated that moment at the time. It wasn’t until after I graduated and was lucky enough to serve as a law clerk for Judge David Sentelle on the D.C. Circuit that I began to see the importance of interpreting written laws as originally understood. I began to see what happens to ordinary people in real cases, to the rule of law, and to the role of the judge when courts abandon that task in favor of “evolving” the law in ways they think preferable. My concerns only grew as I became a lawyer and, later, a judge. I saw people sent to jail or fined for conduct the written law did not proscribe. I saw contracts rewritten based on little more than a judicial policy preference. I saw the scope of regulatory statutes and obligations rewritten entirely based on comments buried in congressional debates. I came to realize that when judges abandon the original meaning of a law to pursue some other goal they find worthy, they risk exercising political will rather than legal judgment. And, in the process, they threaten the legitimacy of the judicial enterprise and the right of the people to fair notice of the law’s demands.
I became persuaded that a judge must learn the lessons of originalism and textualism. Really, the two terms may be little more than different ways to say the same thing. A judge faithful to textualism seeks to enforce a statute’s ordinary meaning at the time of its enactment. And what textualism seeks to
accomplish for statutes, originalism seeks to accomplish for the Constitution. An originalist judge seeks to enforce the original meaning of our nation’s supreme statute.
Over time I learned, too, that there’s nothing revolutionary about any of this. Originalism and textualism sounded new and exciting to me when I first heard Justice Scalia speak. But I later learned that was only because I was taught in something of a bubble where fads largely ruled the day—fads like the Judge as Greek Hero or the Judge as Pragmatic Social Engineer. The notion that judges should more modestly interpret written laws according to their original meaning wasn’t in vogue then but it is anything but new. It turns out to be the view the Supreme Court has expressed in scores of cases through most of its history. It is, as well, how many of the founders conceived of the judge’s job when they wrote the Constitution. Textualism and originalism are our history, the mainstream and traditional accounts of the judge’s job in our republic. What follows are two speeches and a few cases that illustrate my journey to this realization.
ORIGINALISM AND THE CONSTITUTION
Being an originalist sometimes seems like being stuck in a game of whack-a-mole. Whenever you talk about the theory, the same old objections keep popping up. We need a “living” Constitution in a modern society; the Constitution’s too old and cryptic to be able to know its original meaning; originalism leads to awful results that society can’t abide. Whack down one of these challenges and the next is sure to appear. In this piece, I seek to address the usual objections and explain why I believe originalism is the theory of interpretation that fits best with our Constitution.
Imagine you’re hauled into court, falsely accused of murder in a classic case of mistaken identity. The prosecution’s case hinges on an eyewitness’s written statement given to the police only minutes after the crime. But the witness’s story has holes in it. For starters, the statement says he was present at the time of the crime. But you find out he only stumbled onto the scene after the fact. You also discover that the officer who took the statement seemed to threaten the witness—telling him “it would be good for him to talk” about your alleged involvement in the crime because the police “would be taking a hard look at everyone at the scene.”
At trial, the prosecution seeks to introduce the witness’s written statement and your lawyer immediately objects. Now, your lawyer is no slouch. She quickly directs the court’s attention to the Sixth Amendment’s Confrontation Clause, which guarantees a criminal defendant the right to “confront[]…the witnesses against him.” That clause, your lawyer argues, requires live testimony from the witness, not just a piece of paper. After all, she says, there’s no substitute for cross-examination to uncover the flaws in a witness’s story and to assess a witness’s credibility. In reply, the prosecutor argues that testimony isn’t necessary. He says the written statement bears plenty of hallmarks of reliability. He adds, too, that it would be burdensome and inefficient to require the witness to testify on the stand. Ultimately, the judge sides with the prosecution and, without an opportunity to undermine the key piece of evidence, you’re out of luck; the jury quickly convicts.
Something like this unfortunate saga unfurled regularly in courtrooms in America during Ohio v. Roberts’s twenty-four-year reign. In Roberts, the Court disregarded the Sixth Amendment’s plain and firm language that guarantees defendants the right to confront their accusers. In its place, the Court invented a wobbly new balancing test. Under its terms, the so-called “competing interests” of “effective law enforcement” could justify “dispensing with” the defendant’s right to confront a witness at trial so long as a witness’s prior written statement bore “adequate ‘indicia of reliability.’ ” Now, if you’re puzzled by what the term “adequate indicia of reliability” means or how a standard like that might be applied in a principled manner, you are not alone. Under Roberts’s rule, identical cases were often treated very differently. Some judges found indicia of reliability only in detailed statements; others found even brief ones just fine too. Some judges found indicia of reliability because the witness was in custody; others because the witness was out of custody. Some judges found indicia of reliability where a statement was given immediately after the events; others because years had intervened.
Happily, this particular story took a turn for the better when the Supreme Court finally overruled Roberts in Crawford v. Washington. After carefully reviewing historical sources, the Court in Crawford concluded that, as originally understood, the Confrontation Clause prohibited the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford also reminded us that judges are not supposed to substitute a conditional guarantee they prefer for an absolute one found in the Constitution’s text.
The story of Roberts and Crawford is instructive. It shows just how profoundly a judge’s approach to the job of interpreting the Constitution can affect the lives of ordinary Americans. It reveals, too, the central divide in constitutional theory today. On one side, Roberts exemplifies what is often called “living constitutionalism.” Now, living Constitution theories come in more varieties than ice cream flavors at Baskin-Robbins. Every day, more and more aspiring constitutional law professors churn out more and more “paradigm-shifting” theories of constitutional law. Often they bear sonorous-sounding names like Pragmatic Constitutionalism, Progressive Constitutionalism, even Postmodern Constitutionalism. I’m not making this up. While differing in their particulars, many of these theories share the conviction that the Constitution’s meaning changes over time and that judges should determine what changes should be made based on external policy considerations. Just like the Court did in Roberts.
On the other side of the debate lies originalism. Originalists believe that the Constitution should be read in our time the same way it was read when adopted. Like the Crawford Court, originalists believe that a defendant’s right to confrontation today can mean no less than it did at the founding. In an originalist’s view, it is not for judges to decide how to balance the competing interests of efficient law enforcement on the one hand and accurate criminal convictions on the other. The people themselves decided the appropriate balance when they adopted the Sixth Amendment and agreed on an unequivocal right to confrontation. That right, an originalist believes, must be honored always and never rewritten by judges who happen to see things differently. Naturally, originalists sometimes disagree on methods and results. But just like living constitutionalism has a core, so does originalism: that the Constitution’s meaning was fixed at its ratification and the judge’s job is to discern and apply that meaning to the people’s cases and controversies.
Tonight, I want to explain how I came to conclude that originalism is the method of interpretation most consonant with the Constitution—why Crawford is right and Roberts and all those living Constitution theories are wrong. I confess I hope I will manage to persuade you too. But I do not come before you without a backup plan. If I cannot convince you that originalism is the proper interpretive theory for our Constitution, I hope to convince you (to borrow from Churchill) that originalism is the worst form of constitutional interpretation, except for all the others.
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BEFORE I GET TO the real case for originalism, though, let’s clear out some underbrush. No discussion of originalism gets very far these days before someone interjects “We need a living Constitution to govern a modern society.” Originalism, they say, is a terrible thing because it will haul us back to the horse-and-buggy days and is hopelessly impractical for our shiny modern world. But when someone tells you this, hold on to your wallet; you’re about to be swindled. Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies. Consider a few examples. As originally understood,
the term “cruel” in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser. Take another example. As originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet. Or consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.
Well, if that canard doesn’t work, living constitutionalists often reply with another quick objection. They complain we can’t know the original understanding because the document’s too old and cryptic. Hardly. We figure out the original meaning of old and difficult texts all the time. Just ask any English professor who teaches Shakespeare or Beowulf. Does anyone seriously suggest that it’s useless to discuss the original meaning of “to be, or not to be”; “to thine own self be true”; or “[a]ll that glisters is not gold”? The fact is, we have even deciphered the Rosetta Stone. Note, too, the sleight of hand here. If the Constitution is too old to understand, what about old precedents? Surely (hopefully) living constitutionalists don’t mean to suggest we should throw out Marbury v. Madison just because it’s almost as old and cryptic as the Constitution itself.
