Sources of Rights: Originalism and Thayerism

Written by Joe Blass

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Photo by Wesley Tingey on Unsplash

At Northwestern University Law Review’s Symposium on Originalism 3.0, Professor Steven Calabresi presented a paper critiquing a Thayerian approach to judicial handling of unenumerated rights. The session was moderated by Professor James Pfander, with commentary by Professor Jamal Greene of Columbia University Law School.

Professor Calabresi described James Thayer’s influential 1893 Article, The Origin and Scope of the American Doctrine of Constitutional Law, which posited that federal courts should only strike down laws that are clearly in error or are plainly irrational. Per Professor Calabresi, Thayer believed more aggressive judicial oversight had no constitutional grounding and would be bad for democracy. Courts have no business striking down a law for violating unenumerated rights. Per Thayer, the legislature defines the law and what rights are and are not protected, and a court should not use unenumerated rights to justify striking down such laws.

Professor Calabresi noted how influential this theory was, eventually partially codified as law in United States v. Carolene Products. Professor Calabresi argued that Thayerian principles guided the jurisprudence of Justices Holmes, Frankfurter, Byron White, and to a certain extent, Rehnquist, and was responsible for some of the worst decisions the Court ever handed down: Plessy v. Ferguson (upholding segregation), Debs v. United States (upholding a citizen’s imprisonment for criticizing war), Buck v. Bell (upholding the forced sterilization of a patient in a mental asylum), Korematsu v. United States (upholding the internment in concentration camps of hundreds of thousands of American citizens), Goesaert v. Cleary (upholding a law barring women from becoming bartenders), and more.  In each of these cases, Professor Calabresi argued, the Court upheld a law trampling upon citizens’ rights (usually unenumerated). Therein lay the dangers of Thayerian approaches to statutory interpretation.

Professor Calabresi offered an alternative. An originalist interpretation of the Constitution, including the meaning of the unenumerated rights protected by the Ninth Amendment, gives the Constitution its original public meaning. Courts cannot make new rights, but they especially cannot erase the rights that Americans in 1776 believed they had, which is what those previously mentioned decisions Professor Calabresi characterized as Thayerian did.  Professor Calabresi offered the Ancient Constitution, as discussed in the scholarship of John Phillip Reid, as an originalist source of unenumerated rights.

The Ancient Constitution describes a theory that England had a pre-Magna Carta constitution which, as the seventeenth century jurist Edward Coke argued, protected, among others, the right of liberty. This limited the sovereign from taking certain actions against citizens and was upheld by King Edward the Confessor. After the Norman conquest, William the Conquerer pledged to abide by Edward’s laws, but subsequent rulers strayed away from them; the Magna Carta was thus a restatement of Edward the Confessor’s laws.  Many of our nation’s founders read and were influenced by Coke’s writings, supporting the theory that not only did early Americans believe in unenumerated rights, but that the Ancient Constitution was a source for the content of these rights. Thus, unenumerated rights exist, are not inscrutable, and have ancient origins, and Courts are wrong to ignore these sources.

Professor Greene began his commentary by noting how nice it was to be able, just before a contentious election, to have a lively, civil debate, and everyone agreed. Professor Greene then moved on to the business of disagreeing.

First, Professor Greene noted that Professor Calabresi’s attack on Thayerism can be interpreted as a results-based objection, rather than an objection based in first-principles. This, Professor Greene noted, is not what is expected of a Calabresian originalist analysis.

Second, Professor Greene noted that it was not clear that the negative outcomes Professor Calabresi pointed to could be attributed to Thayerism as it is currently understood.  Modern Thayerians, Professor Greene noted, examine to which government institutions we should defer, and how much.  It’s hard to govern and it’s hard to protect rights. If pure originalism is all about rights, and pure Thayerism is all about governance, the interesting and difficult questions exist in deciding what to trade off and how.

Professor Greene made a point to note that several justices cited by Professor Calabresi were bigots, and that some of the cases discussed could be attributed not to a Thayerian view of judicial oversight, but to bigotry. Furthermore, many of the cases Professor Calabresi cited were written or joined by justices that considered themselves strict originalists. Justice Rehnquist was not a Thayerian; Korematsu cloaked itself in the language of strict scrutiny. Thus, calling these cases Thayerian runs counter to the theories of the justices deciding them.

Finally, Professor Greene criticized Professor Calabresi for inadequately drawing modern guidance from his historical analysis. Professor Calabresi’s argument, Professor Greene argued, only supports originalism abstractly, offering little guidance in resolving actual cases. Furthermore, he argued that acknowledging the existence of unenumerated rights, the importance of looking at outcomes, and the nature of intergenerational lawmaking are all good things to do but are not necessarily originalist approaches.

One audience member asked how, if the Ancient Constitution is a source of “vast unenumerated rights,” we are to discern what those rights are, since originalist thinkers seek clear sources of authority. Professor Calabresi suggested that one such source of rights are state bills of rights.

Another audience member asked whether Professor Calabresi was arguing that Thayer directly influenced the cases cited, or whether this was a critique of a generalized Thayerian approach. Professor Calabresi responded that Justices Holmes and Frankfurter were directly impacted by Thayer, but that the critique was of a generalized judicial approach.

Finally, Professor McGinnis argued that Thayer himself had originalist tendencies insofar as he believed the Constitution itself, at the time it was ratified, constrained judicial power. This, Professor McGinnis noted, is an originalist perspective.

A hush fell over the room, but tragically, the session was over time, and Professor Calabresi had no time for a public response. If any discussion of this point was subsequently had over coffee and scones, they did not reach the ears of this Law Review editor.

Professor Calabresi’s full article will be published in April 19, 2019 in the Northwestern University Law Review’s Symposium edition.

Joe Blass is a student at Northwestern Pritzker School of Law and Senior Notes Editor of the Northwestern University Law Review for the 2019–2020 Editorial Board.

Grounding Originalism: A Panel Discussion Moving from Legal Theory to Legal Practice

Written by Andrew Borrasso

We The people text






Photo by Anthony Garand on Unsplash

Is originalism correct? What might make it so? Grounding Originalism, a forthcoming Essay by Professors William Baude and Stephen E. Sachs, tackles these questions by moving from legal theory to legal empirics in an effort to provide a coherent story of our law.

On Friday afternoon, November 5, 2018, Professors Baude and Sachs were joined by Professor Michael Ramsey in a panel discussion about Baude and Sachs’s piece, Grounding Originalism. This panel was part of Northwestern University Law Review Symposium, Originalism 3.0, which focused on originalism’s latest scholarly developments.

As a group, the scholars at this year’s symposium explored originalism by offering new taxonomies, theories, and critiques. This panel focused on translating what is typically categorized as a legal or interpretive theory into empirically observable hypotheses. As Professor Baude explained: “One of the main goals of our paper was to redirect attention to the empirical question: what actually is the official story of our law? If it is not originalism, what is it?”

Professor Sachs, moderating, led off the panel discussion with a summary of the upcoming Essay. He explained that the Essay proceeds in three steps. First, Baude and Sachs detail why choosing a positive legal theory is justified. During the discussion, they suggested that their particular choice of H.L.A. Hart’s positivism functions as an illustration—a similar approach could be adopted for different positivist accounts without much difficulty.

Second, the authors situate a broad swath of originalist theories—generally those that embrace legal reasoning tracing back to the founding either by reference to the Constitution, to historical practice dating to the period, or to lawfully adopted changes enacted since then—within Hart’s positivism. Here, the authors argue that law is largely inferential in nature, which helps distinguish between official legal acts (for example, a judgment in a particular case) and official legal stories (i.e., official reasoning offered as a justification). The authors provide examples where official actors within the legal system may depart from the official, inferential, story of the law in order to facilitate all-too-human expediencies. Or, the authors suggest, given the deeply entangled nature of our law, official actors may remain ignorant in practice to a legal inference as a group, which explains how global departures from the official story may go unaddressed for periods of time. Ultimately, the official story consists of those rules by which the official actors within the legal system feel constrained.

Finally, the authors proceed to the third step of their project: their empirical claims. Several observations—including that judges tend to reject legal discontinuities from the founding and that there are not clear repudiations of originalism in Supreme Court case law—lead the authors to argue that what makes originalism our law is that our legal practice displays a deep commitment to the original law.

Professor Ramsay followed Professor Sachs and provided commentary. While appreciating the piece, his main inquiry focused on whether originalism encapsulated all of the official story of our law. Though he agreed that a large part of the law was empirically originalist, he suggested that there may be other portions of the official story: for example, when the Supreme Court uses nonoriginalist arguments to support legal decisions to members of the legal community who are not originalists.

Professor Baude concluded the panel’s introductory discussion by noting his appreciation for Professor Ramsay’s suggestions and describing additional avenues the paper may explore in subsequent drafts.

The panel closed with a lively discussion among the scholars in attendance. The conversation began with a colloquy focusing on the implications of choosing Hart’s positivism as a jurisprudential frame. Eventually directing their attention to the piece’s empirical focus, others explored potential difficulties in teasing apart the official story of the law from the official acts of its participants.

Professors Baude and Sachs’ full essay will be published in April 2019 in the Northwestern University Law Review.

Andrew Borrasso is a student at Northwestern Pritzker School of Law and Deputy Editor-in-Chief of the Northwestern University Law Review for the 2019–2020 Editorial Board.

Moving the Great Debate on Originalism Theory Forward

Written by Emily McCormick

book lot on black wooden shelf

Photo by Giammarco Boscaro on Unsplash

Georgetown Law’s Professor Lawrence B. Solum discussed his forthcoming article, Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate,at the recent Northwestern University Law Review 2018 Symposium: Originalism 3.0. Professor William Ewald from the University of Pennsylvania provided commentary, and Northwestern Law Professor Joshua Kleinfeld moderated the panel.

Professor Solum began the discussion by sharing his inspiration for the article. While this article comprises part of a larger scholarly work in defense of originalism theory, Solum was inspired to write this article in part due to the uncertainty over what counts as “originalism.”

The goal of his metalinguistic proposal is to better frame the ongoing substantive debate between originalists and living constitutionalists about the best theory of constitutional interpretation. To this end, Solum provides conceptual definitions of “originalism” and “living constitutionalism” in the hopes of eliminating confusion about the boundaries of each theory. Solum defines “originalism” as a family of constitutional theories that affirm two principles: the Fixation Thesis (the meaning of the constitutional text is fixed at the time each provision is drafted) and the Constraint Principle (constitutional practice should be consistent with the original meaning). He then defines “living constitutionalism” as “nonoriginalist constitutional theories that affirm the view that constitutional practice can and should change in response to changing circumstances and values.”

In the interest of moving this substantive debate forward, Solum emphasized the importance of shared terminology and distinguishing domains of discourse: “If participants in the debates about originalism and living constitutionalism are talking past one another, it is difficult to identify what is really at stake in the debate, much less make progress in the clarification and resolution of the issues that are the focus of true substantive debates.”

In a lively question-and-answer session, audience members posed numerous questions related to the difficulty of defining living constitutionalism, which at a minimum encompasses twenty-two theories, and the differences between academic originalism and judicial originalism. While some of the heady theoretical debate about Thayer and Dworkin was above this second-year law student’s head, Solum’s proposal was persuasive; if academics and judges can agree on a shared set of conceptual definitions, the debate can focus on the issues that matter, namely the substantive and normative issues of which interpretation theory provides the most just outcome.

So, with this new shared conceptual framework as a starting point, which side is poised to win the great debate? That remains to be seen, but thanks to Professor Solum, we now have the conceptual vocabulary to ground the debate.

Professor Solum’s full article will be published in April 19, 2019 in the Northwestern University Law Review’s Symposium edition.

Emily McCormick is a student at Northwestern Pritzker School of Law and Symposium Editor of the Northwestern University Law Review for the 2019–2020 Editorial Board.

Leveraging Social Science Evidence in the Courts Today

Written by Meredith McBride

Prof. Peery moderates a discussion with Hons. Ellis, Chang, and Kendall. Photo by Thomas Rousse.

United States District Judges Edmond E. Chang, Sara L. Ellis, and Virginia M. Kendall comprised the fourth and final panel of the Northwestern University Law Review’s October 20, 2017 symposium, “‘A Fear of Too Much Justice’?: Equal Protection and the Social Sciences 30 Years after McCleskey v. Kemp, engaging questions of evidence, epistemology, and expertise on the contemporary bench. Professor Destiny Peery (Northwestern Law) facilitated the panel.

In McCleskey v. Kemp (1987), the Supreme Court was presented with an extensive and rigorous statistical study demonstrating that in Georgia courts, black defendants who had killed white victims were sentenced to death at far higher rates than any other race of defendant who had killed any other race of victim. The Court ultimately held that this evidence was insufficient to support an inference that decisionmakers who had sentenced Warren McCleskey, a black defendant who had killed a white victim, to death had acted with discriminatory purpose. In the years since McCleskey, scholars and courts have grappled with the role of social science in equal protection cases. Advocates seeking to establish equal protection violations in the wake of McCleskey have often been frustrated by the seeming impossibility of bringing any type of social science evidence—by nature aggregate and probabilistic—to bear on specific and particularized fact patterns.

Thirty years after this landmark case, Judges Chang, Ellis, and Kendall expressed a new, if cautious, openness of the bench to social science evidence. All three judges emphasized the importance of applying best practices of fact record development to the use of social science evidence. That is, advocates must show how the evidence is relevant to a particular element or claim, and must introduce it under the appropriate Federal Rule of Evidence. Judge Chang emphasized that lawyers should not cherry-pick quotes from studies that seem to support their argument without having a holistic understanding of the studies and confirming that their methods and conclusions truly support the point they are trying to make. Judge Chang drew a laugh from the audience when he expressed suspicion of briefs that, when using social science evidence, quote only from the first few pages of a study.

The judges also compared social science expertise to other kinds of expert information that are used in litigation. For example, they apply the Daubert standard to social science evidence coming into a case under Federal Rule of Evidence 702, evaluating such evidence with scrutiny comparable to any other expert or technical evidence that parties may seek to introduce. “Hard” social science may be easier for attorneys to introduce than “soft” social science, in part because the Daubert standard itself has been defined with reference to scientific methods more analogous to quantitative than qualitative methodologies. Additionally, judges often have a higher “comfort level,” as Judge Kendall put it, with quantitative methods. Judge Ellis, however, stated that she does not differentiate among social science disciplines in evaluating methodology, and expressed openness to various methodologies so long as they are rigorous and clear enough that she can have confidence in the results.

Evidence of all types is scrutinized more closely when the stakes are higher, Judge Chang noted. The judge hypothesized that this may account for courts’ historical reluctance to engage with social science evidence in, for example, civil cases with high dollar amounts at stake. Judge Kendall pointed out, however, that social science evidence has routinely been used for many years in sentencing hearings, which are among the highest-stakes proceedings in our legal system. In the end, the bench’s willingness to rely on social science evidence is context-dependent. However, advocates can take advantage of the contexts in which it is welcome, and, perhaps create new contexts by meticulously making social science evidence legible to the courts through established practices of developing the fact record.

Equal Protection and the Social Sciences Beyond Criminal Justice

Written by Noor Tarabishy

Following a discussion about the use of social science evidence in the criminal justice system at the Northwestern University Law Review Symposium, Professor Laura Beth Nielsen (Northwestern, Sociology) moderated a panel that explored the varying degrees of success social science has had and the challenges faced by advocates in civil rights litigation.


Professors Russell K. Robinson (Berkeley) and David M. Frost (Columbia) examined the use of social science research in Obergefell v. Hodges (2015), where the American Psychological Association presented two types of social science research in their amicus brief in support of petitioners. Robinson and Frost termed these “sameness studies” and “minority-stress studies.” Sameness studies demonstrate that there are no differences between heterosexual and homosexual couples in intimate relationships, while minority-stress studies focus on the psychological effects of being stigmatized by society, such as depression and anxiety. Each of the two types of studies was cited and played a role in the Supreme Court’s decision. The Court emphasized sameness, for example, when it noted that “many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.” It then noted that without marriage, children of same-sex parents “suffer the stigma of knowing their families are somehow lesser.” The authors noted that the Obergefell opinion is inconsistent in that it acknowledges the stigma same-sex couples and their families face while simultaneously declaring that the exclusion of such couples from the institution of marriage is a view held in “good faith by reasonable and sincere people here and throughout the world.”

Professor Bernadette Atuahene (IIT Chicago-Kent) described the use of social science research in ongoing litigation challenging tax foreclosures in Wayne County, Michigan. The plaintiffs in that lawsuit argue that the county failed to reassess property taxes after the Great Recession, resulting in high tax assessments that violated the Michigan Constitution. Homeowners were then subject to tax foreclosure for their inability to pay the property taxes. Atuahene’s research showed that the tax foreclosures disproportionately affected predominantly black neighborhoods, with rates 10 to 15 times higher than in predominantly non-black neighborhoods. The plaintiffs’ advocates argue that this constitutes illegal housing discrimination in violation of the Fair Housing Act. Although the social science research does not establish discriminatory intent, Atuahene noted that the plaintiffs could prevail because the Fair Housing Act prohibits neutral practices with a disparate impact on a protected class––not just intentional discrimination.

Professor Victoria Plaut (Berkeley) and Ph.D student Kyneshawau Hurd (Berkeley) explored how the focus of higher education affirmative action policies has shifted from remedying past discrimination to promoting diversity. In Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003), the Supreme Court concluded that (1) reducing the deficit of traditionally disfavored minorities, (2) remedying past discrimination, and (3) increasing the number of practitioners in underserved communities were all impermissible justifications for race-conscious admission policies. Instead, the Court approved the diversity rationale, concluding that promoting diversity in higher education was a compelling interest. Plaut and Hurd cautioned that the diversity rationale appears to benefit students in the majority, portraying students of color as subjects to enrich the experiences of other students. Their study showed that white students who considered themselves egalitarian but scored high on social dominance tests were more likely to support race-conscious admission policies for their diversity benefits than to remedy past discrimination. Plaut and Hurd argued that this focus on diversity fosters a sense of entitlement in white students that undermines inclusion.

Professor Michele Goodwin (UC-Irvine) discussed the different “rhetorical traps” used to deprive women––particularly women of color––of their reproductive rights. False information about the safety of abortion is widespread, and states rely on this misinformation to enact laws that restrict women’s access to reproductive services. Under the guise of protecting the health of women and unborn fetuses, these laws require women to wait for a period of time before they are permitted to receive an abortion, and employers can limit benefits to services they believe to involve abortion. In some states, a woman with a substance-abuse problem can be arrested for “endangering her pregnancy.” Goodwin’s scrutinized the rhetoric underlying such policies and demonstrated the absence of any empirical basis to support it. She mentioned, for example, that a woman is fourteen times more likely to die from complications of live childbirth than she is to die from complications of abortion. Goodwin noted the importance of challenging such rhetorical traps because they endanger the lives of women, especially women of color.

The panel emphasized that social science research still has a long way to go to be accepted as evidence of discrimination. In Obergefell, the Supreme Court cited minority-stress studies but stopped short of labeling the majority view as discriminatory. The plaintiffs in the Wayne County tax foreclosure litigation only have a valid claim because the Fair Housing Act does not require proving discriminatory intent. And in the area of race-conscious admission policies, the Supreme Court has shifted its focus from remedying past discrimination to promoting diversity. The Court today is not any more receptive to the use of social science than it was in McClesky v. Kemp (1987).

A Fear of Too Much (Criminal) Justice: Social Science Evidence and the Tension Between Reform and Transformation in the Criminal Justice System

Written by Hillary Chutter-Ames

Professor Paul Butler starts the panel. (Photo Thomas H. Rousse)

McCleskey v. Kemp (1987) was an example of “good-enough-for-black-people kind of justice.” At least, that was how Professor Paul Butler (Georgetown) characterized the seminal death penalty case under discussion at the recent Northwestern University Law Review Symposium, A Fear of Too Much Justice?: Equal Protection and the Social Sciences 30 Years after McCleskey v. Kemp.

Professors Aya Gruber (Colorado) and Angela Onwuachi-Willig (Berkeley) joined Butler on a symposium panel, moderated by Professor Deborah Tuerkheimer (Northwestern), discussing the impact of McCleskey specifically in the context of the criminal justice system.

Other symposium panels noted the import of McCleskey more broadly for equal protection doctrine and anti-discrimination efforts. However, the original case dealt with the death penalty and the constitutionality of Georgia’s death penalty statute. The social science evidence at issue in the case was the Baldus study, which demonstrated the racially disproportionate application of Georgia’s statute penalty in capital cases. The Court refused to acknowledge this social science  evidence of racial disparity and instead upheld the Georgia statute.

This criminal justice panel discussion highlighted the tension between efforts to reform as opposed to transform the criminal justice system, noting the role of McCleskey in shaping how social science can play in role in both kinds of efforts.

Each panelist discussed a different aspect of the intersection of McCleskey, social science evidence and the criminal justice system.

Onwuachi-Willig presented social science research about the racially disparate disadvantages facing the formerly incarcerated in finding employment, asserting that this system is permanently designating the formerly incarcerated as an economic underclass.

Professor Gruber speaks. (Photo Thomas H. Rousse)

Gruber focused on the idea that allowing racial disparity evidence would “shatter the illusions” of the justifications the state uses for punishment. She asserted that the McCleskey court did not fear racial disparity evidence in the abstract, but instead feared racial disparity evidence that would dilute the state’s authority and legitimacy to punish wrongdoers. Gruber instead called for a radical reorientation of the bases for the legitimacy of criminal punishment.

Butler argued that courts will not use social science evidence of racially discriminatory impact, because courts are part of a broader white supremacist institutional structure. He argued that starting with Terry v. Ohio (1968), the Court’s criminal procedure jurisprudence has expanded police power against black men in an intentional racialist project by the Court. The true problem, according to Butler, is proving the racial motives of actors in the criminal justice system, including the Court.

Butler characterized the Court’s response to the evidence of racially disparate impact in McCleskey as the Court being upfront about its white supremacy. If the Court recognized this evidence of the racial motive of criminal justice actors in capital cases, it would have to recognize it in other cases. This would undermine the whole criminal justice system, which the Court was unwilling to contemplate.

Butler concluded that using social science to win equal protection claims, including in the criminal justice context, is a “doomed” project: rights don’t make a difference on the ground in how black men experience a white supremacist criminal justice system.

So is that it? Is there anything left of the criminal justice system to salvage? Is there any role for social science evidence to play?

The panel discussion highlighted several avenues for moving forward.

Tuerkheimer noted two examples where social science evidence has proven an important factor in the criminal justice reform context: the Department of Justice’s Ferguson Report and the Floyd v. New York (S.D.N.Y. 2013) litigation.

Professor Onwuachi-Willig at the symposium (photo Thomas H. Rousse)

Onwuachi-Willig demonstrated that social science can help to document the dimensions of systemic racism. However, she noted that McCleskey’s continuing impact demonstrates how unwilling courts are to examine the kind of evidence that shows structural racism, as opposed to evidence showing the racist intent of a particular individual. As Onwuachi-Willig noted, any finding of structural racism on the part of criminal justice actors would demand a much broader remedy than the court would be willing to consider.

Onwuachi-Willig turned instead to a different institutional actor, the legislature, as an opportunity for concrete proposals for reform within the system. She suggested advocating for initiatives that would require the legislature to conduct racial impact statements. These could be applied only to pending legislation, or more broadly to existing legislation as well. Given the pivotal role of education in improving the job prospects of the formerly incarcerated, Pell Grants could be reinstated for the formerly incarcerated, requiring prisons to provide vocational job training or prison entrepreneurship programs. Onwuachi-Willig also proposed a rule that would require companies relying on prison labor to refrain from discriminating against applicants or employees on the basis of their criminal records.

Another symposium participant and panelist, Professor Mario Barnes (UC-Irvine), suggested using social science on the enforcement side of the criminal justice system, to educate police departments about the social science implications of their conduct, such as the impact of implicit bias in policing.

Butler rejected this, emphasizing the need for transformation. “We need social science to help us understand how to transform this system and this law. We need social science to help with this transformation.” He encouraged looking beyond reform: If the criminal justice system is supposed to be keeping us safe, can social science show us other ways of accomplishing that goal? Can social science show us alternatives to enable the transformation of the criminal justice system?