Category: reason

In my final guest post, I’ll turn to the implications of the original meaning of the citizenship clause for originalism and modern law. Before I do, I want again to thank Eugene Volokh and the Volokh Conspiracy for inviting me, and to thank everyone for your comments and criticisms. The discussion may continue over at my regular blog, The Originalism Blog.

With some oversimplification, originalism is the view that the Constitution’s original meaning should bind modern governmental actors (what Lawrence Solum calls the constraint principle). As described in prior posts, the original meaning indicates that persons born in U.S. overseas territories are born “in” the United States and that U.S.-born children of people not lawfully present in the U.S. are born “subject to the jurisdiction” of the United States. Originalism’s constraint principle would require modern governmental actors to recognize people in these categories as U.S. citizens.

This originalist outcome may seem odd, though. The clause’s enactors likely did not foresee that their constitutional language would resolve either question. Neither question was part of the 1866-1868 citizenship debates. The U.S. didn’t have material overseas territories until 1898. Materially restrictive federal immigration law didn’t begin until the 1880s. The originalist resolution is therefore accidental: the enactors could have chosen other language to accomplish their goals that might have affected these modern debates differently. What justifications for originalism explain enforcing outcomes that the enactors could not contemplate?

Several common justifications seem unhelpful here. One is that modern law should respect the wisdom of the framers. A related idea invokes the framework in which the Constitution was adopted. John McGinnis and Michael Rappaport argue that the supermajority process required to adopt constitutional provisions tends to produce good results. Similarly, it’s said that adopting or amending a Constitution occurs in an atmosphere in which people undertake unusually thoughtful reflection on long-term goals and structures, in contrast to ordinary short-term political thinking.

These approaches share the common feature that they suppose adherence to original meaning produces (on balance) desirable substantive outcomes due to the way the text was adopted as law. Invoking the constraint principle to bind modern political actors is justified by the results. But this justification seems inadequate where the enactors didn’t choose the constraint that is now applied. With the citizenship clause, for example, the enactors likely didn’t understand the policy questions involving birth in overseas territories or birth to persons not lawfully present in the United States. Invoking the constraint principle to resolve these policy questions today (instead of leaving them to the political branches) is difficult to justify on the basis of the enactors’ wisdom or the enactment’s structural advantages. The text’s resolution of the policy questions arises from fortuity, not choice.

A second set of justifications for originalism rests on popular sovereignty. Regardless of the desirability of the enactors’ choices, those choices should (it is said) be honored because they were made through a democratic process encompassing the people’s will. Again, though, it is not clear why modern political actors should be bound to outcomes not deliberately chosen by the people at the time of enactment. If “the People” in adopting the Fourteenth Amendment couldn’t have foreseen that they were resolving key modern debates over citizenship, the resolution is only a fortuity of the language chosen, not a deliberate constitutional commitment of the popular sovereign.

These concerns might not worry those, such as my colleague Larry Alexander, who adopt an “original intent” view of originalism. Intentionalists might say that the best originalist way to apply the framers’ enactment is to constrain the political branches only in the paradigm situations the enactors actually understood and confronted, while leaving further extensions or non-extensions to the political branches.

But most modern originalists call themselves “original meaning” originalists (following Justice Scalia), not “original intent” originalists. So they need a justification for treating the citizenship clause’s text as binding even in its “accidental” applications.

I think there are two related justifications. The first is modern originalism’s core commitment to rule-of-law values, specifically (in the case of a written document) to the rule of written law. Professor Solum discusses this commitment at length in justifying the constraint principle. Rule-of-law values such as stability, objectivity, and predictability are served by following the text’s original meaning even if that meaning constrains modern political actors in ways the enactors couldn’t foresee.

Originalism’s rule-of-law commitment also arises from a formalistic idea of what the law is. This commitment underlies Justice Scalia’s pioneering shift from original intent to original meaning. The law, he insisted, is what was enacted: the text, not the intentions. A formalist conception of law requires that the text be applied to the full extent of its meaning even if that goes beyond (or not as far as) the enactors’ conscious design.

Originalism’s commitment to formalism and rule-of-law values isn’t incompatible with commitments to the framers’ wisdom, the structure of the enactment process, or the idea of popular sovereignty. In many (perhaps most) cases, the justifications will run in parallel. Commitment to the text’s original meaning commonly validates these other justifications because the text is (usually) the best evidence of the enactors’ design. But as the citizenship clause indicates, original meaning and the enactors’ design will sometimes diverge. At that point, rule-of-law considerations appear to dominate and justify original meaning originalism’s adherence to the text without exception.

Categorical adherence to original meaning is reinforced by an important practical concern. To this point, I’ve assumed that it’s possible to separate clearly situations in which the enactors deliberately resolved a modern policy choice and situations in which they resolved it only accidentally. But those situations may not be so easily distinguished. Even with the citizenship clause, some authorities have suggested that the enactors could have foreseen the issues of overseas possessions and undocumented migrants. Beyond the citizenship clause, categorization difficulties become even more apparent. What if the enactors deliberately chose to constrain the political branches in a certain way, but new policy considerations, not present at the time of enactment, arise to suggest that the policy decision has additional dimensions the enactors could not foresee? Pursuing such inquiries necessarily injects uncertainty and subjectivity into the interpretive process. Originalism applied with such qualifications may resemble non-originalism and cease to provide dependable constraint on judges or the political branches. Originalism’s commitment to rule-of-law values will sharply oppose such moves as undermining objectivity, stability, and predictability; originalism’s formalism will insist that the solution is the (relatively) concrete rule of original textual meaning, irrespective of whether that meaning reflects a deliberate policy choice of the enactors.

The formalist approach is compatible with other justifications for originalism. Those who rest originalism on the framers’ wisdom may believe that, on balance, the best way to effectuate the framers’ wisdom is to apply the framers’ text categorically, even to situations in which it may appear that the framers did not make a deliberate policy choice. The alternative is case-by-case evaluation of the text’s compatibility with the framers’ choices, which, in addition to being unstable and unpredictable, may, due to institutional limitations and bias, not deliver superior results. Thus, other justifications for originalism may combine with and complement originalism’s formalism, rather than stand as an alternative to it. But the example of the citizenship clause indicates, I think, that formalism is originalism’s core.

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More than two decades ago, Virginia Postrel published a prescient book with a wonderful title: “The Future and Its Enemies.” The technological revolution that has led to “greater wealth, health, opportunity and choice than at any time in history,” she argued, has resulted in “a chorus of intellectuals and politicians [that] loudly laments our condition.”

Sadly, the future’s enemies use the government to fight inevitable innovation and progress.

These critics bemoan the economic insecurity such advances have wrought, as well as other first-world problems ranging from our “enslavement” to technology to the supposed (but not actual) despoliation of the Earth. When she published the book, “smart phones” were rather dull. They were large, clunky, and served solely to make phone calls. It’s inconceivable how far those—and other common products—have developed in the ensuing years.

I recall my prized eight-track tape player, my first car with its whopping 70 horsepower and AM-only radio, phone booths, library card catalogs, pneumatic tubes for delivering office documents (Google it), video stores, and, my favorite, Qwip machines. The latter was cutting-edge in the 1970s. The sender put a document on a cylinder that would spin. It slowly transmitted a facsimile of the document—line by line and in crude fashion—to carbon paper at the other end.

Today I scanned and emailed dozens of documents and shudder at the thought of doing things in that archaic manner.  By the way, it’s easy to get caught up in the consumer-oriented improvements we cherish while forgetting about, say, the vast improvements in food production that have dramatically reduced world hunger and the many life-saving medical advancements.

In California this year, the fight over the future centers on Proposition 22, which would allow companies such as Uber, Lyft, and DoorDash to classify workers as independent contractors rather than as permanent employees. Obviously, technology has disrupted the way we travel, shop, and work, which has made our lives much better—but has infuriated labor unions, which find it tougher to organize workers in the flexible new work world.

I’ve noted this before, but they’ve clearly taken on the role of the 19th Century British Luddites—textile workers who couldn’t compete with mechanized looms, so they vandalized them. Modern unions don’t destroy property these days—but they lobby the government to do something worse. They try to hobble those industries that are moving the world forward.

A few weeks ago, I took a taxicab for the first time in months. The driver didn’t want my business because, apparently, it wasn’t a good-enough fare. The cab was grimy. He balked at my credit card, and it took time to process it after I insisted. Compare that to the friendly and seamless experiences we have with Uber and Lyft. Think about the deliveries we receive—and how they allow us to avoid those laborious trips to box stores and restaurants.

Proposition 22 is a reaction to Assembly Bill 5, which went into effect in January. The law, signed by Gov. Gavin Newsom and championed by unions, codified a 2018 California Supreme Court decision (Dynamex) that applied a strict test to companies that want to hire freelancers. The measure would exempt drivers from A.B. 5’s provisions—and provide them with some portable benefits.

After A.B. 5 became law, it had vast should-have-been-seen consequences. Instead of bringing workers onboard full-time and paying them benefits, companies started laying off their California contractors. Californians who had good jobs but used freelance and contractor work to earn some side income had to give up their lucrative gigs. Consumers suffered, too, as they endured rising prices and fewer choices—all in the midst of a pandemic.

That’s why even the union-controlled California Legislature exempted more than 100 industries from A.B. 5’s strict provisions. They exempted almost every major industry, except for those increasingly vital transportation and delivery services.

If voters approve Proposition 22, the state will have a groundbreaking labor law that applies to virtually no one, yet that hasn’t stopped the labor movement from touting it as a nationwide model. If California voters approve it, they will slow this new Luddite movement from spreading.

Unions can’t stop the future, but they can cause misery as we await its arrival. For instance, our union-allied attorney general, Xavier Becerra, has filed lawsuits against the transportation companies to force them to comply with A.B. 5 as we await the election. The companies were hours away from suspending operations here until a court issued a temporary stay. This is nonsensical in a state that sees itself as the embodiment of progress.

Even if labor wins at the polls this November, it will have no more long-term success than any other group that has tried to fight a changing world. Like water rolling down a hill, creative minds will find their way around every obstacle. Sorry, but the union vision of factory floors and cubicles is a vestige of the past—not a roadmap to the future.

This column was first published in The Orange County Register.

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10/30/1735: President John Adams’s birthday.

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The Witches raises a number of questions, primarily Why?

Why has Anne Hathaway, as the head witch here, been allowed to affect a braying Zsa-Zsa-Lugosi Hungarian accent that might have been designed to trigger tension headaches in anyone exposed to it?

Why was it felt wise to digitally accessorize Hathaway with a huge stretchy mouth filled with huge razory teeth, as though she were auditioning for an all-female Venom spinoff?

Why does this whole movie, from the singing-dancing rodents to the madly tumbling witches, look as if it had been marinated in pricey CGI? It’s not that the digital animation isn’t good – it’s top-shelf, with characters capering through chase scenes and interacting with their environments in highly complex ways. Great stuff. Also, after a short while, kinda boring.

The tech overload here is no surprise, actually. The director, Robert Zemeckis, has made a number of very popular (and some very good) films over the years—Back to the Future, Forrest Gump, Used Cars. But he was also an early fan of computer-generated imagery and has created such Uncanny Valley classics as Polar Express and Beowulf. Anyone who’s sat dozing through those two films might want sit out this one.

The Witches is the second big-screen adaptation of Roald Dahl’s 1983 fantasy novel. (The first, still warmly regarded, was directed by Nicolas Roeg and starred Anjelica Huston.) The story remains pretty much the same. A young orphan (Jahxir Bruno) —nameless in the book but dubbed “Hero Boy” in the movie’s credits—is living with his grandmother (Octavia Spencer) at her home in rural Alabama. Grandma, we learn—at a somewhat mopey pace—was once a witch hunter, and so knows what’s happening when spooky crone sightings begin to crop up. To protect her grandson, she takes him to a fancy seaside resort. But it turns out that a coven of witches has also booked rooms there, styling themselves the International Society for the Prevention of Cruelty to Children. (Witches are great kidders.) The group’s maximum leader, the Grand High Witch (Hathaway), has come up with a nasty new plan for the human race: It involves a “mouse maker” potion, of which the GHW has brought along a copious supply. She wants her minions to return to their various hometowns and start opening candy stores. Then she wants them to lace their candy with the “mouse maker” concoction. After the kids transform into rodents, their own parents might unwittingly kill them.

As a longtime Anne Hathaway fan, it pains me to ask how much better this movie might have been without her in it. Her over-the-top sashaying will surely send some viewers rearing back in alarm, while others might be put off by the telltale witchy signs with which her character has been adorned – the scabby scalp rash (from the wigs she must wear—witches are bald), the three-fingered hands, the single-taloned feet. Hathaway puts a lot of effort into this un-charming character—not a moment passes in which she’s not killin’ it—but it’s tiresome.

On the plus side, there’s deluxe production design by Gary Freeman that makes you want to slip onto the cozy sets and take a restorative nap. There’s also the great Stanley Tucci, reuniting with Hathaway for the first time since The Devil Wears Prada. Tucci can improve a movie just by walking through a scene; here, unfortunately, playing the hotel manager, Mr. Stringer, he’s mainly called upon to dither.

The dialogue is fine, for the most part, with the exception of a few potted homilies like “Never give up what you are inside—the sort of soft-focus thinkery that cries out for a punchline.

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“It’s the state, Emily. The power of the state wants to crush you. No matter how minor your transgressions might seem to be.” If HBO’s exquisitely produced revival of Perry Mason has a mission statement, it’s in those few lines.

The scene comes at a pivotal moment near the end of the fourth episode, in which defense lawyer Elias Birchard consults with Emily Dodson, a client wrongly accused of abetting the kidnapping and murder of her own infant son.

The crime was actually a product of corrupt cops and church elders, and Dodson was fingered for the murder not only because she’d had an affair with one of the kidnappers but because a sleazy district attorney thought pinning the crime on an unfaithful woman would be attention-grabbing—and thus politically useful in his mayoral quest.

Perry Mason is about the ways the criminal justice system fails to produce justice, sometimes because it is flawed, and sometimes because those who wield its power use their authority to pursue their own selfish ends rather than truth or fairness.

Whether the state is merely incompetent or actively corrupt, the show seems to suggest, the burdens of its failures fall primarily on women and minorities, the poor and the vulnerable, those who have the fewest means to defend themselves from overreach and abuse.

Co-director Tim Van Patten also worked on HBO’s similarly luxurious Boardwalk Empire. Just as that show explored how Prohibition empowered avaricious men on both sides of the law, Mason is a show about how the law itself encourages cruelty and power seeking. In both series, the state is an engine of injustice and a corrupter of souls. But Perry Mason, at least, offers some hope in the form of personal decency, acts of conscience, and a dogged private attorney.

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Qatari officials took all of the women off of a flight scheduled to leave for Australia and strip-searched them. An infant, believed to be newly born, had been found in a restroom at the airport terminal, and officials were reportedly examining the women for signs that one of them had recently given birth.

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