Lawmaking in the Legitimacy Gap: A Short History of the Supreme Court’s Interpretive Finality

Volume 108

108 Va. L. Rev. Online 112
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*J.D., Virginia, 2020; M.St., Oxford, 2017; B.A., Vanderbilt, 2016. Special thanks to Andrew Nell and the other members of the Virginia Law Review editorial team who assisted with this piece, a version of which was fortunate enough to win the Law Review’s 2021 essay competition. Any errors, of course, are mine alone.Show More

Despite bestowing an epic name upon the nation’s highest tribunal, the Constitution says precious little about the weight that we must accord to its constitutional decisions. That silence has spawned serious division among jurists and scholars. Some argue that the Supreme Court may conclusively determine only the rights of the parties before it. Yet others contend that its interpretations, like the Constitution itself, are “the supreme Law of the Land.” Whichever view is correct is today a high-stakes question, given that the Court, practically speaking, enjoys interpretive finality. But its privileged position has a questionable historical pedigree. Far from the Court serving as the ultimate expositor of constitutional meaning, constitutional interpretation was originally seen as a dialogue between the Court and the People. The Court, no doubt, could construe the Constitution to settle individual controversies. But when it erred, the People could swiftly correct it by amending the Constitution. A forgotten but important example of that model, this Essay contends, was the People’s reversal of Chisholm v. Georgia through the Eleventh Amendment. Yet the “Chisholm model” was not to last, and the amendment process is nearly defunct. Why? One reason, this Essay suggests, is that the Court would later begin to render decisions within “legitimacy gaps”—where its constitutional interpretations were demonstrably erroneous but also insufficiently unpopular to reverse. Such legitimacy gaps corrode the design of Article V and facilitate the judicial arrogation of power. But they also have a straightforward remedy: judicial adherence to the Constitution’s original meaning.

Introduction

Even before its formal creation, the federal judiciary spawned sharp debate about its proper role in a system of separated powers. Writing as “Publius” in defense of the proposed Constitution, Alexander Hamilton famously remarked that, among the three “departments,” the judiciary would be the “least dangerous.”1.The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).Show More Having “neither FORCE nor WILL,” it could merely render judgments in individual cases and controversies.2.Id.Show More And it still would “depend upon the aid of the executive arm” for those judgments to carry real-world significance.3.Id.Show More But even at the Framing, Hamilton hardly could have boasted that his depiction of the judicial power enjoyed universal acclaim. Less famous, but no less important, was the attack on Article III that “Brutus” had mounted in the Anti-Federalist.4.See Essays of Brutus No. XII, N.Y.J., Feb. 7, 1788, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates 298 (Ralph Ketcham ed., 1986).Show More Rejecting claims of a timid judiciary, Brutus instead forecasted that it would acquire inordinate strength.5.Id. at 298–99.Show More It alone had “the power, in the last resort, to determine . . . the meaning and construction of the constitution.”6.Id. at 299.Show More Courts could thus control the legislature in a way that the legislature could not control the courts: since “the constitution is the highest or supreme law,” Brutus said, courts would enjoy the prerogative to reject “a law, which, in their judgment, opposes the constitution.”7.Id.Show More And without a practical mechanism confining courts to the Constitution’s “letter,” their constructions would become “very liberal” and their powers “supreme and uncontrollable.”8.Id. at 299–300.Show More

This back-and-forth, it turns out, presaged central debates about the nature of judicial power that persisted long after the Framing. Consider, for instance, the following question: Who is the legitimate interpreter of the federal Constitution? One view suggests that there is no single answer. Rather, everybody with a stake in constitutional meaning—the executive, legislature, judges, and People—may claim an interpretive role.9.See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 159 (1999); see alsoMichael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 221 (1994) (arguing that authority to interpret the law is a shared power among the three branches).Show More But another answer is that the Supreme Court really is supreme and that its constitutional interpretations are final.10 10.Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution . . . . It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land”).Show More On that view, the Court’s opinions (and the “constitutional law” they generate) become part of the Constitution itself.11 11.Id.Show More Through the Supremacy Clause, then, they constitute “the supreme Law of the Land.”12 12.Id.; see also U.S. Const. art. VI, cl. 2 (stating the same).Show More

Whichever view is correct has obvious and profound consequences for American democracy. But belying that issue’s central importance is the Constitution’s laconic treatment of it. We learn from Article III that federal courts will exercise something called the “judicial Power.”13 13.U.S. Const. art. III, § 1.Show More We also learn that there will (indeed, must) be “one supreme Court” and that Congress may (but need not) create various “inferior Courts.”14 14.Id.Show More And, Article III tells us, these courts’ subject-matter jurisdiction extends only to certain “cases or controversies.”15 15.Id. art. III, § 2.Show More That is about it. We do not learn which aspects of the Supreme Court’s work product (whether opinions or mere judgments) are binding, whether either may bind non-parties, or, at least directly, whether even the lower courts must follow Supreme Court precedent.16 16.See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 834–38 (1994).Show More The Supremacy Clause is not of much help either. Though labeling “supreme” the “Constitution” and “Laws of the United States,” the clause never equates judicial opinions with the “Constitution” or “Laws.”17 17.U.S. Const. art. VI, cl. 2.Show More Indeed, it omits mention of opinions altogether.18 18.Id.Show More

Given that lacuna, some defenders of “judicial supremacy” (that is, of judges’ interpretive finality) have conceded that it cannot be justified by the text alone.19 19.See, e.g., Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Comment. 455, 459–60 (2000).Show More Professors Larry Alexander and Frederick Schauer, for instance, contend that because “a central moral function of law is to settle what ought to be done,” treating judicial opinions as functionally supreme can have important practical benefits.20 20.Id. at 457.Show More Still, Alexander and Schauer acknowledge that their thesis has encountered “thoughtful and troubling” criticisms about the ahistorical nature of judicial supremacy.21 21.Id. at 458.Show More Professor Edward Hartnett, for example, has persuasively argued that history refutes “opinion supremacy.”22 22.Hartnett, supranote 9, at 126–36. I take the phrase “opinion supremacy” from William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1845 (2008).Show More Instead, it confirms that constitutional interpretation should be a “conversation” between courts and others “legitimately interested in the meaning of the Constitution,” like the political branches.23 23.Hartnett, supranote 9, at 159.Show More Judicial attempts to arrogate the sole power of final interpretation—as the Supreme Court claimed to do most famously in Cooper v. Aaron24 24.See supra note 10.Show More—are thus misguided.25 25.Hartnett, supranote 9, at 126.Show More

Like Professor Hartnett and others, this Essay contends that judicial supremacy is less a textual command than an unwritten and historically contingent norm. But this Essay makes that point by examining a deeply underappreciated constitutional moment in American history: the Supreme Court’s 1793 decision in Chisholm v. Georgia26 26.2 U.S. (2 Dall.) 419 (1793).Show More and its swift demise through the People’s ratification of the Eleventh Amendment.27 27.See U.S. Const. amend. XI.Show More Chisholm nominally concerned whether Article III’s grant of diversity jurisdiction abrogated states’ immunity from suit by private individuals in federal court.28 28.Chisholm, 2 U.S. (2 Dall.) at 430–31.Show More Yet as Part I details, the Chisholm decision—the Court’s first construing the Constitution29 29.5 The Documentary History of the Supreme Court of the United States, 1789–1800, at 127 (Maeva Marcus et al. eds., 1994) [hereinafter DHSC].Show More and the first to be reversed by an amendment30 30.Id.Show More—has a hidden significance. It provides an early and provocative example of how constitutional interpretation was viewed as a dialogue between the Court and the People. The Court, to be sure, was entitled to construe the constitutional text. But when it erred, the People could swiftly correct it with a more sublime exposition. The Chisholm incident thus contains valuable clues about how the People believed they would maintain interpretive supremacy through Article V.

As Part II discusses, however, the People’s check on the judiciary was not to last. Like Brutus predicted,31 31.See Essays of Brutus No. XII, supranote 4, at 300 (predicting that courts would subordinate the Constitution’s text to its “spirit and reason” to reach policy-oriented outcomes).Show More judicial review would come to operate within the context of what I term “legitimacy gaps”—where constitutional decisions, though demonstrably inconsistent with the Constitution itself, are also tough to reverse.32 32.I will take a moment here to describe how I use the term “legitimacy” throughout—a usage informed by Professor Richard Fallon’s recent work on the topic. We can think of “legitimacy” in three different respects: legal, moral, and sociological. See Richard H. Fallon, Law and Legitimacy in the Supreme Court 21 (2018). Put simply, a decision is morally legitimate when it represents what ought to be done, while it is sociologically legitimate when it enjoys wide popular support. Id. The question of legal legitimacy is more complex, and I define it differently than does Professor Fallon. See id. at 49–51. In my view, legitimacy unfolds on a spectrum, and a constitutional decision is most legally legitimate when it both stems from originalist decision procedures and is substantively correct as an original matter. Ideally, of course, a decision would embody all three types of legitimacy—legal, moral, and sociological. But in practice, the three planes can diverge. A decision may be legally illegitimate and yet enjoy sociological legitimacy given its wide popular support. Indeed, that is how I conceptualize the “legitimacy gap”—when a decision is arguably or even clearly legally illegitimate and yet enjoys sufficient sociological legitimacy to prevent its repudiation. Additionally, I should clarify that legitimacy in my view differs from authority. There may be situations in which a rule of decision is legally illegitimate under the criteria I set out above and yet possibly we should still accept it as binding authority; the doctrine of stare decisis, for instance, seeks to explain when we should do so in the context of overruling precedent. See, e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015) (“[S]tare decisis has consequence only to the extent it sustains incorrect decisions . . . .”). Or, to give another example, a lower-court judge remains bound to apply indistinguishable Supreme Court precedent even when such precedent is indefensible as an original matter.Show More Sometimes, for example, a dubious right gained popular backing that was at once appreciable but also insufficient to produce a constitutional amendment. Yet the Court still codified the right into “constitutional law.”33 33.Even ardent judicial supremacists acknowledge that judge-made “constitutional law” is distinct from the Constitution itself. See, e.g.,Eric J. Segall, The Constitution Means What the Supreme Court Says It Means, 129 Harv. L. Rev. F. 176, 178 (2016).Show More While it thus could not have achieved constitutional status through Article V on its own merits, the right was insufficiently unpopular to abrogate by an amendment. Or, perhaps worse, the People could affirmatively recognize new rights with a constitutional amendment, but the Court could then undermine those guarantees with an erroneous construction that was insufficiently unpopular to dislodge. The Court’s construction was thus illegitimate, but not so illegitimate that it spurred prompt reversal. The rise of the Court’s interpretive finality, in other words, hinged on the existence of background levels of polarization sufficient to insulate controversial decisions from correction by the People.

But the rabid polarization that has stymied popular checks on the judiciary should not be seen, in turn, as a license for the judiciary to freely operate within those legitimacy gaps. Amendments’ rarity should instead cause judges to be even more circumspect in their constitutional constructions. To that end, this Essay suggests that courts can mitigate the lack of a popular-constitutional check by declining to make new decisions—and hesitating to extend old ones—that are dubious as an original matter. By seeking fidelity to original meaning, judges can defuse the “judicial tyranny” that legitimacy gaps may otherwise create.34 34.Robert Bork, The Tempting of America: The Political Seduction of the Law 140 (1990); see also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 17, 22 (1997) (“It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.”).Show More

I. Chisholm and the Lost Conversation Between the Court and the People

By its terms, Article III of the Constitution provides that “[t]he judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State.”35 35.U.S. Const. art. III, § 2, cl. 1.Show More But does that grant of jurisdiction mean that private plaintiffs may hale even unconsenting states into a federal tribunal? That was the question the Supreme Court considered in Chisholm v. Georgia.36 36.2 U.S. (2 Dall.) 419, 430 (1793) (opinion of Iredell, J.); see also id. at 452 (opinion of Blair, J.).Show More During the Revolutionary War, Georgia had contracted with South Carolina merchant Robert Farquhar for the purchase of goods worth about £9,000 sterling.37 37.5 DHSC, supra note 29, at 127.Show More Farquhar delivered the goods but, despite his “many demands,” Georgia never paid.38 38.Id.Show More Farquhar “spent the remainder of his life trying to recover the debt.”39 39.Id.Show More Yet he died in 1784, still uncompensated.40 40.Id.Show More In response, Farquhar’s executor, Alexander Chisholm, sued Georgia in the United States Circuit Court for the District of Georgia.41 41.Id. at 127–28.Show More The novel claim put Georgia’s government “at a loss to know how to proceed.”42 42.Id. at 128.Show More It eventually filed a plea to the jurisdiction, asserting that it could not “be drawn or compelled” into court without its consent.43 43.Plea to the Jurisdiction, Chisholm ex rel. Farquhar v. Georgia, (C.C.D. Ga. Oct. 21, 1791), in 5 DHSC, supra note 29, at 143, 143.Show More

District Judge Nathaniel Pendleton, sitting alongside circuit Justice James Iredell, agreed.44 44.See 5 DHSC, supra note 29, at 130.Show More Though Pendleton’s opinion is lost to history, Iredell’s survived.45 45.Id. at 130 n.25.Show More He began by noting the practical oddities of subjecting a state to judicial process. It seemed that Georgia’s governor, Edward Telfair, would be the relevant natural person to appear on Georgia’s behalf.46 46.See Chisholm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supra note 29, at 148, 152.Show More But if many plaintiffs sued Georgia, Telfair could not possibly defend all the suits at once. So, Iredell reasoned, it was proper that subordinate counsel should appear on Georgia’s behalf and defend the action.47 47.Id.Show More Satisfied that Georgia’s plea to the jurisdiction was procedurally valid, Iredell turned to jurisdiction itself. He noted first that even if Article III permitted state suability in theory, Congress had not explicitly created such jurisdiction by statute.48 48.Id. at 154.Show More In any event, he said, only the Supreme Court could even exercise such jurisdiction.49 49.Id. at 153.Show More Article III specifies that the Court “shall have original Jurisdiction” in cases “in which a State shall be Party,”50 50.U.S. Const. art. III, § 2, cl. 2.Show More and given the importance of state suability, he reasoned, the Court’s jurisdiction must not only be original, but also exclusive.51 51.Chisolm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supranote 29, at 148, 153.Show More He and Pendleton thus dismissed the suit.52 52.5 DHSC, supranote 29, at 130–31.Show More

Undeterred, Chisholm filed an original action against Georgia in the Supreme Court itself.53 53.Id. at 131.Show More Georgia refused to appear, so the Court heard argument only from counsel for Chisholm, Edmund Randolph.54 54.Id. at 134.Show More Both Randolph and the five Justices who heard the case understood that its central issue—state suability—was paramount.55 55.SeeChisholm v. Georgia, 2 U.S. (2 Dall.) 419, 419 (1793); see also id. at 432 (opinion of Iredell, J.); id. at 450 (opinion of Blair, J.); id. at 453 (opinion of Wilson, J.); id. at 467–68 (opinion of Cushing, J.); id. at 479 (opinion of Jay, C.J.).Show More The states had accumulated massive debts to private creditors during the Revolutionary War.56 56.5 DHSC, supranote 29, at 2.Show More They had also expropriated many Loyalists’ property.57 57.Id.Show More If creditors or Loyalists could use the federal courts to vindicate those claims—states’ objections notwithstanding—states could face the prospect of bankruptcy. Unsurprisingly, the Chisholm litigation attracted intense public scrutiny.58 58.Id. at 134.Show More

For the “numerous and respectable audience” that had gathered in Philadelphia to hear the Court’s decision in February 1793, the states initially might have appeared secure.59 59.Id.Show More Justice Iredell, back from the circuit assignment, delivered his opinion first.60 60.Chisholm, 2 U.S. (2 Dall.) at 429.Show More He again rejected the claim that states could be sued in federal court, echoing his statutory arguments from the circuit.61 61.Id. at 430, 432 (opinion of Iredell, J.).Show More But as his colleagues (Justices Blair, Wilson, Cushing, and Chief Justice Jay) delivered their own opinions seriatim, it became clear that Iredell would not prevail. Rather—relying on everything from the Constitution’s supposedly plain text62 62.Id. at 467 (opinion of Cushing, J.); id. at 476–77 (opinion of Jay, C.J.).Show More to sundry European philosophers63 63.Id. at 457–63 (opinion of Wilson, J.).Show More—the four contended that, indeed, Article III had abrogated states’ immunity from suit.

The decision “fell upon the country with a profound shock”64 64.5 DHSC, supranote 29, at 4; accord James E. Pfander, History and State Suability: An “Explanatory” Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269, 1278 (1998).Show More—and for good reason. George Mason and Patrick Henry had criticized the proposed Constitution for its apparent codification of state suability.65 65.Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1592–93 (2002).Show More But “during the ratification debates . . . both James Madison and John Marshall [had] explicitly asserted that Article III would not expose unconsenting states to suit by individuals.”66 66.Id. at 1564.Show More Likewise, Alexander Hamilton had written in Federalist No. 81 that it was “inherent in the nature of sovereignty” for a state “not to be amenable to the suit of an individual without its consent.”67 67.The Federalist No. 81, supra note 1, at 486 (Alexander Hamilton) (emphasis omitted).Show More So for Anti-Federalists who had relented when given those guarantees, Chisholm was no doubt a stinging decision.

And their anger was justified. Chisholm’s interpretation of Article III was both inconsistent with the ratification debates and simply wrong: Unconsenting states’ immunity from process was a personal-jurisdictional backdrop that Article III was not supposed to abolish.68 68.Nelson, supra note 65, at 1565–66. This is not to say that, inversely, states thus enjoyed constitutional immunity from all process in the federal courts. However repugnant suits against states by individuals might have been, subjecting states to process in other types of suits—such as those between states or between a state and the United States, at least so long as Congress established the requisite statutory jurisdiction over such disputes—seems to accord with the original design of Article III. See id. at 1631–32.Show More More important for our purposes, though, was the ensuing reaction. Observers almost immediately began to contest the deference due the Supreme Court’s pronouncement. True, the Court found defenders in various quarters. Noah Webster’s paper, the American Minerva, ran an editorial strongly defending judicial supremacy.69 69.See An Intemperate Resolution of Georgia, Am. Minerva, Jan. 15, 1794, reprinted in 5 DHSC, supra note 29, at 237, 238.Show More The Supreme Court had “deliberately decided [that Article III] extends to enable a person to sue a State,” it said.70 70.See id.Show More “This decision is then a law of the United States, or rather a part of the constitution,” and thus “binding on every citizen.”71 71.Id. (emphasis added).Show More Edmund Pendleton likewise wrote to his nephew Nathaniel that though Chisholm seemed wrongly decided, he supposed that it “must be taken for law.”72 72.Letter from Edmund Pendelton to Nathaniel Pendleton (Aug. 10, 1793), reprinted in 5 DHSC, supranote 29, at 232, 232.Show More A similar and “striking . . . defense of the federal judiciary” arose from the Virginia Senate.73 73.Id. at 285–86.Show More When the House of Delegates excoriated “the decision of the Supreme Fœderal Court,” several state senators lodged protest.74 74.See Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supranote 29, at 338, 338; Proceedings of the Virginia Senate (Dec. 4, 1973), reprinted in 5 DHSC, supra note 29, at 339, 339. This Essay preserves historical sources’ original spelling.Show More The Constitution was “at least ambiguous” on state suability, in their view, so the Court did not deserve the lower house’s “censure.”75 75.Id. at 339.Show More

Among the broader populace, however, the Justices’ opinions were then considered neither infallible nor, as a practical matter, final. The “swift and widespread” perception was instead that Chisholm would soon be reversed through Article V.76 76.2 DHSC, supra note 29, at 338.Show More Vice-President John Adams predicted as much in a letter to his son in March 1793, even before copies of the Chisholm opinions were widely available.77 77.Letter from John Adams to Charles Adams (Mar. 18, 1793), in The Adams Papers Digital Collection (Sara Martin ed., 2022), https://rotunda.upress.virginia.edu/founders/ADMS-04-09-02-0241 [https://perma.cc/39ST-E8KP].Show More “The Report of the late Case in the Supream national Court will soon be made public and the Arguments of the Judges weighed,” he said.78 78.Id.Show More “If it Should be necessary for Congress to interfere by Submitting that part of the Constitution to the Revision of the State Legislatures, they have Authority to do it.”79 79.Id.Show More His assessment was not only correct but even somewhat belated. For on the same day of Chisholm’s decision, the House of Representatives had already begun to contemplate an amendment barring state suability.80 80.2 DHSC, supra note 29.Show More

Resistance likewise gained momentum in the state legislatures. Georgia soon demanded “an explanatory amendment to the Constitution” reversing Chisholm.81 81.Proceedings of the Georgia House of Representatives, Augusta Chron., Nov. 9, 1793, reprinted in 5 DHSC, supranote 29, at 235, 235.Show More And it urged federal “Senators and Representatives to use every means in their power to obtain a speedy ratification.”82 82.Id.Show More Virginia and Connecticut likewise instructed their congressional delegates to secure an amendment “to remove or explain any clause” suggesting “that a state is compellable to answer in any suit.”83 83.Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supranote 29, at 338, 338–39; Resolution of the Connecticut General Assembly (Oct. 29, 1793), reprinted in 5 DHSC, supranote 29, at 609, 609.Show More At Governor John Hancock’s direction, Massachusetts made a similar push.84 84.See Report of a Joint Committee of the Massachusetts General Court, Indep. Chron., June 20, 1793, reprinted in 5 DHSC, supranote 29, at 230, 230.Show More Its General Court recommended that any text in Article III supporting state suability be “wholly expunged from the Constitution.”85 85.Id.Show More For “the Supreme Judicial Court of the United States,” it said, “hath given a construction to [it] very different from the ideas which the Citizens of this Commonwealth entertained . . . at the time it was adopted.”86 86.Id. at 231.Show More

By March 1794 (soon after Chisholm’s first anniversary), the House and Senate had approved the text of the requested explanatory amendment.87 87.4 Annals of Cong. 477 (1795).Show More In its now-famous language, it declared that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”88 88.Id.; see also U.S. Const. amend. XI (stating the same).Show More With lawyerly precision, then, it dispelled the jurisdiction the Chisholm majority had grafted onto Article III.

Ratification came soon after, first in New York and last in North Carolina in February 1795.89 89.See Pfander, supranote 64, at 1271 n.5.Show More As the twelfth in a Union of then fifteen to ratify, North Carolina converted the proposal into the Eleventh Amendment.90 90.Id.Show More The Court’s “first great constitutional case”91 91.Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 Va. L. Rev. 1729, 1729 (2007).Show More thus became its first great constitutional defeat: Chisholm’s reign was extinguished in only its second year.

For the People, however, it was the first great interpretive victory. After the Justices had offered their own construction of Article III, the People disagreed, and so they reversed it with a superior exposition through Article V. In this respect, the “explanatory” language of the Eleventh Amendment is revealing.92 92.Pfander, supranote 64, at 1335–43.Show More It treated Chisholm not as having unveiled some truth about the Constitution that required a change. Rather, by informing the judiciary how Article III “shall not be construed,” the amendment framed Chisholm as wrong the day it was decided.93 93.Id.Show More Indeed, the original Constitution had not meant to abolish the states’ existing immunity. But it took the People’s exposition to rescue that original meaning from the Court’s erroneous construction.

Uninformed observers might assume that this exchange sparked a longer tradition of vigorous popular checks on the judiciary, with the People sitting as an “Article V court” to continuously revise judicial interpretations. However, Part II suggests why that future never materialized.

II. Legitimacy Gaps and the Expansion of Judicial Power

Many reasons account for why the Court’s later decisions were (and still are) almost never overruled by amendment. Much of the Court’s docket, to be sure, involves “lawyer’s law”—low-salience disputes incapable of generating broad public interest. But the Court has also waded into some of the most fraught public debates imaginable—from abortion and affirmative action to school prayer and same-sex marriage. Even still, only perhaps five of its decisions in the last two-hundred years have met direct reversal through Article V.94 94.SeeU.S. Const. amend. XIV (overruling Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)); U.S. Const. amend. XVI (overruling Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895)); U.S. Const. amend. XIX (overruling Minor v. Happersett, 88 U.S. 162 (1875)); U.S. Const. amend. XXIV (overruling Breedlove v. Suttles, 302 U.S. 277 (1937)); U.S. Const. amend. XXVI (overruling Oregon v. Mitchell, 400 U.S. 112 (1970)).Show More Why? It seems incredible to believe that the Court always gets it right; the Court itself sometimes disavows important portions of its own jurisprudence. Rather, Chisholm again bears important lessons. Article V worked in that case, it turns out, because state suability was both economically important and not particularly controversial. A wide consensus existed that the Court’s decision was erroneous. And the People were collectively mad enough to do something about it.

But imagine instead that Federalist support for the decision had been more widespread. Indeed, imagine that Federalists and Anti-Federalists had fractured evenly into their respective camps, so that state suability enjoyed public approval and disapproval in about equal measure. In that case, Article III’s actual meaning would not have been particularly important. The Court could have decided Chisholm either way—for or against state suability—and its decision would have been immune from Article V review. If the public had been more polarized on the immunity issue, in other words, Chisholm would have survived as an important precedent in “constitutional law.” And it would have done so even despite its status as a demonstrably erroneous misreading of the original Constitution.

That probably sounds like a bad outcome. The People would have achieved seeming consensus during ratification, only to be duped by misguided seriatim opinions and subsequent polarization. But for many later decisions, that counterfactual is a reality—it’s what really explains why the Court became near-impervious to amendments. So long as its decisions are insufficiently unpopular to reverse, the Court can safely abandon the Constitution’s actual meaning. A couple of brief examples will illustrate such legitimacy gaps in action.

A. Inventing Dubious Rights: New York Times Co. v. Sullivan (1964)95 95.376 U.S. 254 (1964).Show More

As originally understood, the First Amendment had “nothing to do” with regulating libel suits.96 96.Dexter v. Spear, 7 F. Cas. 624, 624 (Story, Circuit Justice, C.C.R.I. 1825) (No. 3,867).Show More To the contrary, libel was a crime and a tort at the Framing and well into the twentieth century.97 97.Ronald A. Cass, Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine, 12 First Amend. L. Rev. 399, 404–06 (2014).Show More As late as 1952, the Supreme Court upheld a libel conviction, given that “libelous utterances” were outside “the area of constitutionally protected speech.”98 98.Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).Show More Twelve years later, however, the Court upended almost two centuries of jurisprudence and inaugurated “a seemingly irreversible process of constitutionalizing the entire law of libel[.]”99 99.Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 766 (1985) (White, J., concurring in the judgment).Show More First, in New York Times Co. v. Sullivan, the Court held that public officials who sued for libel had to prove that defendants acted with “actual malice”—either while knowing their statements were false or with reckless disregard for their falsity.100 100.Sullivan, 376 U.S. at 279–80.Show More Then, “[t]he Court promptly expanded” that rule101 101.McKee v. Cosby, 139 S. Ct. 675, 677 (2019) (Thomas, J., concurring in denial of certiorari).Show More to include “public figures”—private citizens otherwise engaged in public discourse102 102.Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967) (plurality opinion).Show More—and later even to certain private figures criticized on matters of “public concern.”103 103.Dun & Bradstreet, Inc., 472 U.S. at 751.Show More

As a result, libel actions have become “almost impossible” to win, even when defendants’ accusations are egregious and demonstrably false.104 104.Id. at 771 (White, J., concurring in the judgment); see also Justin W. Aimonetti & M. Christian Talley, How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts, 130 Yale L.J. Forum 708, 708 (2021). (noting “the Sullivan standard is almost impossible to satisfy”).Show More Unsurprisingly, the actual malice standard has generated intense controversy. Justices Gorsuch and Thomas, for instance, have criticized the decision for its raw policymaking and lack of any plausible connection to original meaning.105 105.Berisha v. Lawson, 141 S. Ct. 2424, 2424–25 (2019) (Thomas, J., dissenting from denial of certiorari); id. at 2426 (Gorsuch, J., dissenting from denial of certiorari).Show More Progressives, too, have called for Sullivan’s revision, since it ended up immunizing outright “lies” rather than “vigorous public exchange.”106 106.Jeremy Lewin, The Progressive Case for Libel Reform, Wall St. J. (Apr. 5, 2021), LUP5https://www.wsj.com/articles/the-progressive-case-for-libel-reform-11617638828?mo​d=article_inline [https://perma.cc/RPB9-LUP5]Show More Yet the decision retains a fair degree of support and is firmly entrenched in our First Amendment mythology.107 107.See, e.g., The Uninhibited Press, 50 Years Later, N.Y. Times (Mar. 8, 2014), https://www​.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html [https://p​erma.cc/7XW7-2GMU].Show More (And, naturally, the last attempt to reverse it through a constitutional amendment failed.)108 108.H.R.J. Res. 1285, 92nd Cong., 118 Cong. Rec. 27714 (1972).Show More So, while Sullivan bears questionable relation to the Constitution itself, it survives in a legitimacy gap as a leading principle of constitutional law.109 109.It is thus an example of the useful distinction Professor Stephen E. Sachs has drawn between “actual law” and “actual practice.” See Stephen E. Sachs, Law Within Limits: Judge Williams and the Constitution 3–9 (Geo. Mason Univ. Ctr. for Study Admin. State, Working Paper No. 21-36, 2021), https://administrativestate.gmu.edu/wp-content/uploads/sites/29/2021/09/Sachs-Law-Within-Limits.pdf [https://perma.cc/G8EB-7RV9]. We can think of “actual law,” on the one hand, as the Constitution itself and its original meaning as fixed at the time of its ratification, while we can think of “actual practice,” on the other, as the precedents of “constitutional law” that lawyers actually apply to litigate concrete cases. See id. These precedents are not the Constitution itself (and for that matter sometimes may be an egregious misinterpretation of it), but they nonetheless supply binding rules of decision that lower courts must apply in the actual practice of constitutional adjudication. See also William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. Univ. L. Rev. 1455, 1472 (2019) (“Under our system’s rules of precedent, legal actors are sometimes commanded to follow a Supreme Court decision ‘as if’ it were the law—even as the underlying legal materials, which command ultimate authority, prescribe a different result. . . . This ‘as if’ law can be binding on particular actors without thereby becoming the law. . . .”).Show More

B. Cabining Rights Guaranteed: United States v. Cruikshank (1876)110 110.92 U.S. 542 (1875).Show More

After the Union’s victory in the Civil War—and the several hundred thousand Union deaths required to achieve it—the nation ratified the “Reconstruction Amendments” in an attempt to unravel Southern white supremacy. The Thirteenth abolished slavery,111 111.SeeU.S. Const. amend. XIII.Show More while the Fifteenth prohibited denial of the right to vote on account of race.112 112.SeeU.S. Const. amend. XV.Show More And the Fourteenth, by its terms, featured three central guarantees: due process, equal protection, and that no state should “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”113 113.U.S. Const. amend. XIV.Show More For reasons that will soon become apparent, the last guarantee has fallen into practical desuetude. But that development was itself bizarre. “At the time of Reconstruction, the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights’”—precisely the sort of rights considered “fundamental” and “inalienable” and that had been “codifi[ed] in the Constitution’s text” via the Bill of Rights.114 114.McDonald v. Chicago, 561 U.S. 742, 813, 818 (2010) (Thomas, J., concurring in the judgment). For a recent exploration of this topic, see Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 176–78 (2021). Barnett and Bernick persuasively criticize the Slaughter-House Court’s “extremely narrow” and “bizarre” reading of the Privileges or Immunities Clause to cover only supposed rights of national citizenship rather than fundamental rights—such as those embodied in the Bill of Rights—more broadly. See id. at 174–78; see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 117–19 (1873) (asserting “privileges and immunities” can be found “in the original Constitution” and its “early amendments”).Show More

It was quite reasonable, then, for federal prosecutors in 1873 to have indicted several white-supremacist Democrats and Klansmen for deprivation of constitutional rights after they had murdered scores of Black militiamen outside a Louisiana courthouse.115 115.James Gray Pope, Snubbed Landmark: WhyUnited States v. Cruikshank (1876)Belongs at the Heart of the American Constitutional Canon, 49 Harv. Civ. Rts.-Civ. Liberties. L. Rev. 385, 387 (2014).Show More The conspiracy and ensuing massacre had undeniably deprived the freedmen of their rights to assemble and bear arms. But in a stunning decision in March 1876, the Court reversed the Klansmen’s convictions.116 116.United States v. Cruikshank, 92 U.S. 542, 556–57 (1875).Show More Building on its earlier Slaughter-House decision, the Court reasoned that assembly and carriage of arms could not be privileges or immunities stemming from United States citizenship, since those rights had preexisted the United States’ creation.117 117.Id. at 544, 551; see also Barnett & Bernick, supra note 114, at 181–84.Show More Thus, their fundamental nature “was the very reason citizens could not enforce [them] against [the] States.”118 118.McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).Show More That conclusion likewise meant that none of the Bill of Rights was enforceable against the South, since all the rights guaranteed in the first nine amendments flowed from principles earlier than nationhood.119 119.Cruikshank, 92 U.S. at 551–52. I thus include the Ninth Amendment, though whichever rights it protects (and whether they are judicially enforceable) is the subject of longstanding debate. See, e.g., Troxel v. Granville, 530 U.S. 57, 91–93 (2000) (Scalia, J., dissenting).Show More So despite the Fourteenth Amendment’s plain and “established” terminology,120 120.McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).Show More the Court applied a construction that reduced its protections to a sliver. Amendment attempts in the 1880s to expand and restore civil rights failed,121 121.See, e.g., H.R.J. Res. 92, 48th Cong., 15 Cong. Rec. 282 (1884).Show More since much of the nation was no doubt pleased by the Court’s narrowing construction. (Indeed, white race-terrorists in the South celebrated the Cruikshank ruling by murdering several Black citizens and Republican officials.)122 122.Pope, supranote 115, at 412–13.Show More Later litigants would thus be forced to seek “selective incorporation” through the vehicle of “substantive” due process.123 123.See, e.g., Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253, 253, 274 (1982).Show More The practical result is that even one-hundred-fifty years later, the Bill of Rights still does not fully apply to the states.124 124.The Third Amendment, the Fifth Amendment’s grand-jury requirement, and the Seventh Amendment’s right to civil jury trials remain unincorporated. McDonald, 561 U.S. at 765 n.13.Show More

Conclusion

It is interesting to imagine how constitutional doctrine might have developed differently had the Chisholm model survived and the “People’s Court” of Article V sat in continuous judgment of Article III. For instance, as is sometimes said with regard to statutes,125 125.See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989). Whether a differential stare decisisregime for statutory precedents makes sense, I would note, is subject to dispute. See Gamble v. United States, 139 S. Ct. 1960, 1987 (2019) (Thomas, J., concurring).Show More we might believe that the People’s failure to overrule an innovative constitutional construction thus ratified it as a definitive gloss. As it turns out, however, modern realities could hardly sustain such a presumption. The amendment process is ossified, and given the realities of political polarization, judges enjoy functional finality in exposing constitutional meaning—even when their constructions are demonstrably erroneous.

The lack of a popular-constitutional check does not mean the situation is hopeless, of course. It just means that, in that check’s absence, restraint must come from the judiciary itself. Courts should endeavor to apply the Constitution’s original meaning—that to which the People agreed—rather than “extorting from precedents something” the Constitution “does not contain.”126 126.Robert Rantoul, Oration at Scituate (July 4, 1836), in Kermit L. Hall, William M. Wiecek & Paul Finkelman, American Legal History 317, 318 (1991).Show More And they “should tread carefully before extending [those] precedents” that are dubious as an original matter.127 127.Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting).Show More Only then are we bound by “the intention of the people,” rather than by the mere “intention of their agents.”128 128.The Federalist No. 78, supranote 1, at 467 (Alexander Hamilton). I confess that in the context of this short essay, I cannot provide a comprehensive account of why originalism is the best interpretive system to achieve legal legitimacy. So, a couple of brief points will have to suffice instead. First, originalism treats as law the historical meaning of the Constitution—a factual and thus falsifiable claim—rather than the unfalsifiable intuitions of individual jurists. See Baude & Sachs, supra note 109, at 1458; see also William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2363, 2398–99 (2015) (declaring originalism to be “meaningfully distinct” because it has “one methodology” and can be subject to “historical falsification.”). In this way, it of all systems most plausibly constrains constitutional interpretation. And second, the meaning to which such interpretation is bound is original public meaning—that to which the People as sovereign originally assented. SeeObergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting) (“The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.”). Originalism thus not only constrains (or, of competing systems, most plausibly constrains), but it constrains to that source of meaning with the most plausible claim to representing truly legitimate authority. See U.S. Const. pmbl. (“We the People of the United States, in Order to form a more perfect Union . . . .”); see also J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. __ (forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4049069 [https://perma.cc/4782-UZWL] (recognizing “original meaning…is necessary to preserve the legitimate authority of the people….”).Show More

  1. * J.D., Virginia, 2020; M.St., Oxford, 2017; B.A., Vanderbilt, 2016. Special thanks to Andrew Nell and the other members of the Virginia Law Review editorial team who assisted with this piece, a version of which was fortunate enough to win the Law Review’s 2021 essay competition. Any errors, of course, are mine alone.
  2. The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  3. Id.
  4. Id.
  5. See Essays of Brutus No. XII, N.Y.J., Feb. 7, 1788, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates 298 (Ralph Ketcham ed., 1986).
  6. Id. at 298–99.
  7. Id. at 299.
  8. Id.
  9. Id. at 299–300.
  10. See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 159 (1999); see also Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 221 (1994) (arguing that authority to interpret the law is a shared power among the three branches).
  11. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution . . . . It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land”).
  12. Id.
  13. Id.; see also U.S. Const. art. VI, cl. 2 (stating the same).
  14. U.S. Const. art. III, § 1.
  15. Id.
  16. Id. art. III, § 2.
  17. See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 834–38 (1994).
  18. U.S. Const. art. VI, cl. 2.
  19. Id.
  20. See, e.g., Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Comment. 455, 459–60 (2000).
  21. Id. at 457.
  22. Id. at 458.
  23. Hartnett, supra note 9, at 126–36. I take the phrase “opinion supremacy” from William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1845 (2008).
  24. Hartnett, supra note 9, at 159.
  25. See supra note 10.
  26. Hartnett, supra note 9, at 126.
  27. 2 U.S. (2 Dall.) 419 (1793).
  28. See U.S. Const. amend. XI.
  29. Chisholm, 2 U.S. (2 Dall.) at 430–31.
  30. 5 The Documentary History of the Supreme Court of the United States, 1789–1800, at 127 (Maeva Marcus et al. eds., 1994) [hereinafter DHSC].
  31. Id.
  32.  See Essays of Brutus No. XII, supra note 4, at 300 (predicting that courts would subordinate the Constitution’s text to its “spirit and reason” to reach policy-oriented outcomes).
  33. I will take a moment here to describe how I use the term “legitimacy” throughout—a usage informed by Professor Richard Fallon’s recent work on the topic. We can think of “legitimacy” in three different respects: legal, moral, and sociological. See Richard H. Fallon, Law and Legitimacy in the Supreme Court 21 (2018). Put simply, a decision is morally legitimate when it represents what ought to be done, while it is sociologically legitimate when it enjoys wide popular support. Id. The question of legal legitimacy is more complex, and I define it differently than does Professor Fallon. See id. at 49–51. In my view, legitimacy unfolds on a spectrum, and a constitutional decision is most legally legitimate when it both stems from originalist decision procedures and is substantively correct as an original matter. Ideally, of course, a decision would embody all three types of legitimacy—legal, moral, and sociological. But in practice, the three planes can diverge. A decision may be legally illegitimate and yet enjoy sociological legitimacy given its wide popular support. Indeed, that is how I conceptualize the “legitimacy gap”—when a decision is arguably or even clearly legally illegitimate and yet enjoys sufficient sociological legitimacy to prevent its repudiation. Additionally, I should clarify that legitimacy in my view differs from authority. There may be situations in which a rule of decision is legally illegitimate under the criteria I set out above and yet possibly we should still accept it as binding authority; the doctrine of stare decisis, for instance, seeks to explain when we should do so in the context of overruling precedent. See, e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015) (“[S]tare decisis has consequence only to the extent it sustains incorrect decisions . . . .”). Or, to give another example, a lower-court judge remains bound to apply indistinguishable Supreme Court precedent even when such precedent is indefensible as an original matter.
  34. Even ardent judicial supremacists acknowledge that judge-made “constitutional law” is distinct from the Constitution itself. See, e.g., Eric J. Segall, The Constitution Means What the Supreme Court Says It Means, 129 Harv. L. Rev. F. 176, 178 (2016).
  35. Robert Bork, The Tempting of America: The Political Seduction of the Law 140 (1990); see also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 17, 22 (1997) (“It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.”).
  36. U.S. Const. art. III, § 2, cl. 1.
  37. 2 U.S. (2 Dall.) 419, 430 (1793) (opinion of Iredell, J.); see also id. at 452 (opinion of Blair, J.).
  38. 5 DHSC, supra note 29, at 127.
  39. Id.
  40. Id.
  41. Id.
  42. Id. at 127–28.
  43. Id. at 128.
  44. Plea to the Jurisdiction, Chisholm ex rel. Farquhar v. Georgia, (C.C.D. Ga. Oct. 21, 1791), in 5 DHSC, supra note 29, at 143, 143.
  45. See 5 DHSC, supra note 29, at 130.
  46. Id. at 130 n.25.
  47. See Chisholm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supra note 29, at 148, 152.
  48. Id.
  49. Id. at 154.
  50. Id. at 153.
  51. U.S. Const. art. III, § 2, cl. 2.
  52. Chisolm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supra note 29, at 148, 153.
  53. 5 DHSC, supra note 29, at 130–31.
  54. Id. at 131.
  55. Id. at 134.
  56. See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 419 (1793); see also id. at 432 (opinion of Iredell, J.); id. at 450 (opinion of Blair, J.); id. at 453 (opinion of Wilson, J.); id. at 467–68 (opinion of Cushing, J.); id. at 479 (opinion of Jay, C.J.).
  57. 5 DHSC, supra note 29, at 2.
  58. Id.
  59. Id. at 134.
  60. Id.
  61. Chisholm, 2 U.S. (2 Dall.) at 429.
  62. Id. at 430, 432 (opinion of Iredell, J.).
  63. Id. at 467 (opinion of Cushing, J.); id. at 476–77 (opinion of Jay, C.J.).
  64. Id. at 457–63 (opinion of Wilson, J.).
  65. 5 DHSC, supra note 29, at 4; accord James E. Pfander, History and State Suability: An “Explanatory” Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269, 1278 (1998).
  66. Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1592–93 (2002).
  67. Id. at 1564.
  68. The Federalist No. 81, supra note 1, at 486 (Alexander Hamilton) (emphasis omitted).
  69. Nelson, supra note 65, at 1565–66. This is not to say that, inversely, states thus enjoyed constitutional immunity from all process in the federal courts. However repugnant suits against states by individuals might have been, subjecting states to process in other types of suits—such as those between states or between a state and the United States, at least so long as Congress established the requisite statutory jurisdiction over such disputes—seems to accord with the original design of Article III. See id. at 1631–32.
  70. See An Intemperate Resolution of Georgia, Am. Minerva, Jan. 15, 1794, reprinted in 5 DHSC, supra note 29, at 237, 238.
  71. See id.
  72. Id. (emphasis added).
  73. Letter from Edmund Pendelton to Nathaniel Pendleton (Aug. 10, 1793), reprinted in 5 DHSC, supra note 29, at 232, 232.
  74. Id. at 285–86.
  75.  See Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supra note 29, at 338, 338; Proceedings of the Virginia Senate (Dec. 4, 1973), reprinted in 5 DHSC, supra note 29, at 339, 339. This Essay preserves historical sources’ original spelling.
  76. Id. at 339.
  77. 2 DHSC, supra note 29, at 338.
  78. Letter from John Adams to Charles Adams (Mar. 18, 1793), in The Adams Papers Digital Collection (Sara Martin ed., 2022), https://rotunda.upress.virginia.edu/founders/ADMS-04-09-02-0241 [https://perma.cc/39ST-E8KP].
  79. Id.
  80. Id.
  81. 2 DHSC, supra note 29.
  82. Proceedings of the Georgia House of Representatives, Augusta Chron., Nov. 9, 1793, reprinted in 5 DHSC, supra note 29, at 235, 235.
  83. Id.
  84. Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supra note 29, at 338, 338–39; Resolution of the Connecticut General Assembly (Oct. 29, 1793), reprinted in 5 DHSC, supra note 29, at 609, 609.
  85. See Report of a Joint Committee of the Massachusetts General Court, Indep. Chron., June 20, 1793, reprinted in 5 DHSC, supra note 29, at 230, 230.
  86. Id.
  87. Id. at 231.
  88. 4 Annals of Cong. 477 (1795).
  89. Id.; see also U.S. Const. amend. XI (stating the same).
  90. See Pfander, supra note 64, at 1271 n.5.
  91. Id.
  92.  Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 Va. L. Rev. 1729, 1729 (2007).
  93. Pfander, supra note 64, at 1335–43.
  94. Id.
  95. See U.S. Const. amend. XIV (overruling Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)); U.S. Const. amend. XVI (overruling Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895)); U.S. Const. amend. XIX (overruling Minor v. Happersett, 88 U.S. 162 (1875)); U.S. Const. amend. XXIV (overruling Breedlove v. Suttles, 302 U.S. 277 (1937)); U.S. Const. amend. XXVI (overruling Oregon v. Mitchell, 400 U.S. 112 (1970)).
  96. 376 U.S. 254 (1964).
  97. Dexter v. Spear, 7 F. Cas. 624, 624 (Story, Circuit Justice, C.C.R.I. 1825) (No. 3,867).
  98. Ronald A. Cass, Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine, 12 First Amend. L. Rev. 399, 404–06 (2014).
  99. Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).
  100. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 766 (1985) (White, J., concurring in the judgment).
  101. Sullivan, 376 U.S. at 279–80.
  102.  McKee v. Cosby, 139 S. Ct. 675, 677 (2019) (Thomas, J., concurring in denial of certiorari).
  103. Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967) (plurality opinion).
  104. Dun & Bradstreet, Inc., 472 U.S. at 751.
  105. Id. at 771 (White, J., concurring in the judgment); see also Justin W. Aimonetti & M. Christian Talley, How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts, 130 Yale L.J. Forum 708, 708 (2021). (noting “the Sullivan standard is almost impossible to satisfy”).
  106. Berisha v. Lawson, 141 S. Ct. 2424, 2424–25 (2019) (Thomas, J., dissenting from denial of certiorari); id. at 2426 (Gorsuch, J., dissenting from denial of certiorari).
  107. Jeremy Lewin, The Progressive Case for Libel Reform, Wall St. J. (Apr. 5, 2021), LUP5https://www.wsj.com/articles/the-progressive-case-for-libel-reform-11617638828?mo​d=article_inline [https://perma.cc/RPB9-LUP5]
  108. See, e.g., The Uninhibited Press, 50 Years Later, N.Y. Times (Mar. 8, 2014), https://www​.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html [https://p​erma.cc/7XW7-2GMU].
  109. H.R.J. Res. 1285, 92nd Cong., 118 Cong. Rec. 27714 (1972).
  110. It is thus an example of the useful distinction Professor Stephen E. Sachs has drawn between “actual law” and “actual practice.” See Stephen E. Sachs, Law Within Limits: Judge Williams and the Constitution 3–9 (Geo. Mason Univ. Ctr. for Study Admin. State, Working Paper No. 21-36, 2021), https://administrativestate.gmu.edu/wp-content/uploads/sites/29/
    2021/09/Sachs-Law-Within-Limits.pdf [https://perma.cc/G8EB-7RV9]. We can think of “actual law,” on the one hand, as the Constitution itself and its original meaning as fixed at the time of its ratification, while we can think of “actual practice,” on the other, as the precedents of “constitutional law” that lawyers actually apply to litigate concrete cases. See id. These precedents are not the Constitution itself (and for that matter sometimes may be an egregious misinterpretation of it), but they nonetheless supply binding rules of decision that lower courts must apply in the actual practice of constitutional adjudication. See also William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. Univ. L. Rev. 1455, 1472 (2019) (“Under our system’s rules of precedent, legal actors are sometimes commanded to follow a Supreme Court decision ‘as if’ it were the law—even as the underlying legal materials, which command ultimate authority, prescribe a different result. . . . This ‘as if’ law can be binding on particular actors without thereby becoming the law. . . .”).
  111. 92 U.S. 542 (1875).
  112. See U.S. Const. amend. XIII.
  113. See U.S. Const. amend. XV.
  114. U.S. Const. amend. XIV.
  115. McDonald v. Chicago, 561 U.S. 742, 813, 818 (2010) (Thomas, J., concurring in the judgment). For a recent exploration of this topic, see Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 176–78 (2021). Barnett and Bernick persuasively criticize the Slaughter-House Court’s “extremely narrow” and “bizarre” reading of the Privileges or Immunities Clause to cover only supposed rights of national citizenship rather than fundamental rights—such as those embodied in the Bill of Rights—more broadly. See id. at 174–78; see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 117–19 (1873) (asserting “privileges and immunities” can be found “in the original Constitution” and its “early amendments”).
  116. James Gray Pope, Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon, 49 Harv. Civ. Rts.-Civ. Liberties. L. Rev. 385, 387 (2014).
  117. United States v. Cruikshank, 92 U.S. 542, 556–57 (1875).
  118. Id. at 544, 551; see also Barnett & Bernick, supra note 114, at 181–84.
  119. McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).
  120. Cruikshank, 92 U.S. at 551–52. I thus include the Ninth Amendment, though whichever rights it protects (and whether they are judicially enforceable) is the subject of longstanding debate. See, e.g., Troxel v. Granville, 530 U.S. 57, 91–93 (2000) (Scalia, J., dissenting).
  121. McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).
  122. See, e.g., H.R.J. Res. 92, 48th Cong., 15 Cong. Rec. 282 (1884).
  123. Pope, supra note 115, at 412–13.
  124. See, e.g., Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253, 253, 274 (1982).
  125. The Third Amendment, the Fifth Amendment’s grand-jury requirement, and the Seventh Amendment’s right to civil jury trials remain unincorporated. McDonald, 561 U.S. at 765 n.13.
  126. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989). Whether a differential stare decisis regime for statutory precedents makes sense, I would note, is subject to dispute. See Gamble v. United States, 139 S. Ct. 1960, 1987 (2019) (Thomas, J., concurring).
  127. Robert Rantoul, Oration at Scituate (July 4, 1836), in Kermit L. Hall, William M. Wiecek & Paul Finkelman, American Legal History 317, 318 (1991).
  128. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting).
  129. The Federalist No. 78, supra note 1, at 467 (Alexander Hamilton). I confess that in the context of this short essay, I cannot provide a comprehensive account of why originalism is the best interpretive system to achieve legal legitimacy. So, a couple of brief points will have to suffice instead. First, originalism treats as law the historical meaning of the Constitution—a factual and thus falsifiable claim—rather than the unfalsifiable intuitions of individual jurists. See Baude & Sachs, supra note 109, at 1458; see also William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2363, 2398–99 (2015) (declaring originalism to be “meaningfully distinct” because it has “one methodology” and can be subject to “historical falsification.”). In this way, it of all systems most plausibly constrains constitutional interpretation. And second, the meaning to which such interpretation is bound is original public meaning—that to which the People as sovereign originally assented. See Obergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting) (“The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.”). Originalism thus not only constrains (or, of competing systems, most plausibly constrains), but it constrains to that source of meaning with the most plausible claim to representing truly legitimate authority. See U.S. Const. pmbl. (“We the People of the United States, in Order to form a more perfect Union . . . .”); see also J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. __ (forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4049069 [https://perma.cc/4782-UZWL] (recognizing “original meaning…is necessary to preserve the legitimate authority of the people….”).

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