The Lost Judicial Review Function of the Speech and Debate Clause

The prevailing understanding of the Speech or Debate Clause of the United States Constitution is that it was transplanted without significant modification from Article 9 of the English Bill of Rights of 1689. This Note challenges that view by highlighting overlooked deviations which inform how this legislative privilege was adapted from a system of parliamentary sovereignty to fit one in which the Constitution is supreme. Courts and commentators have neglected to recognize that the Speech or Debate Clause, unlike Article 9, provides no institutional shield for the legislature in the exercise of its internal proceedings. Article 9’s protection of “proceedings in Parliament” from judicial review was omitted from the Speech or Debate Clause, and the Clause was also reconfigured to name individual members of Congress—rather than the collective body itself—as the possessors of the legislative privilege.

This novel textual analysis invites questioning of an arguably undeserved discrepancy in judicial enforcement of the Constitution as between federal statutes and congressional proceedings—those investigatory and lawmaking processes which lead up to the enactment of statutes. Favoring more robust judicial review of congressional proceedings, this Note identifies matters as to which a more textually grounded understanding of the speech or debate privilege could encourage change. Potential changes include permitting motive inquiries when individuals challenge congressional investigations as infringing their fundamental rights, lifting the enrolled bill doctrine and the extreme deference which veil the lawmaking process, and differentiating between lawsuits against individual legislators and those against collective legislative bodies.

Introduction

The Speech or Debate Clause of Article I, Section 6 of the United States Constitution provides members of Congress and their close aides with immunity from suit for legislative conduct, as well as an evidentiary privilege rendering evidence of legislative acts inadmissible.1.See, e.g., Gravel v. United States, 408 U.S. 606, 616 (1972) (immunity from suit); United States v. Johnson, 383 U.S. 169, 184–85 (1966) (evidentiary privilege).Show More Historical and purposive expositions of the Speech or Debate Clause often appeal to its textual source, Article 9 of the English Bill of Rights of 1689.2.The Supreme Court recognized Article 9 of the English Bill of Rights as the predecessor of the Speech or Debate Clause in its first interpretation of the Clause in Kilbourn v. Thompson, 103 U.S. 168, 202 (1880).Show More Article 9 reads: “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”3.The Bill of Rights 1689, 1 W. & M. c. 2.Show More Just a few edits at the Philadelphia Convention produced the American Clause in its constitutional form: “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other place.”4.U.S. Const. art. I, § 6, cl. 1.Show More

Due to the shared lineage of these legislative privilege provisions, the highest American and British courts have reciprocally referred to each other’s privilege jurisprudence for interpretive guidance. For example, when considering whether the legislative privilege covered allegations of criminal conspiracy and bribery by legislators, the U.S. Supreme Court looked to the British case Ex parte Wason for assistance.5.United States v. Brewster, 408 U.S. 501, 502, 509 (1972) (where a former senator was charged with bribery (citing Ex parte Wason [1869] 4 LRQB 573 at [577])); Johnson, 383 U.S. at 170–71, 183 (where a former congressman was charged with conspiracy to defraud the United States (citing Ex parte Wason, 4 LRQB at [576]–[77])).Show More In turn, when former members of the House of Commons were charged with false accounting in R v. Chaytor, the United Kingdom Supreme Court (“UKSC”) referenced the U.S. Supreme Court’s analysis in United States v. Brewster, writing that the interpretive issues created by the two provisions “mirror[]” each other and that therefore “some of the reasoning in Brewster is relevant to consideration of the scope of [Article 9].”6.R v. Chaytor [2010] UKSC 52, [38], [2011] 1 AC 684, 704.Show More

American courts have embraced the similarities between the two provisions but have fallen short in recognizing their stark differences. This Note seeks to highlight and begin to rectify this void. In particular, it analyzes how the differences between the two provisions evince a purposeful deviation in the American constitutional system that could make internal legislative proceedings—the investigatory and lawmaking processes which lead up to the enactment of statutes—more susceptible to judicial review.

Part I examines the text and function of Article 9, explaining that its phrase “proceedings in Parliament” provides institutional protection to Parliament from judicial review of its internal proceedings. Part II turns to the American Founding, discussing contemporaneous understandings of Article 9 and how the Framers transformed Article 9 into the Speech or Debate Clause, with adaptations fitted for the American system of government. This Part focuses on the Framers’ omission of a parallel phrase to “proceedings in Parliament,” which, along with the Clause’s individualized subject, indicates that the Clause was more likely designed to support than to suppress judicial review of internal congressional proceedings. Part III applies this novel textual analysis to the modern American judicial landscape, where Congress receives much deference for its internal proceedings. Current jurisprudence ironically employs the Speech or Debate Clause to impede judicial scrutiny of internal legislative proceedings, although the Clause’s textual and structural framing suggests instead that it contemplates more searching judicial review.

  1. * J.D., University of Virginia School of Law, 2021. I would like to thank Professors Saikrishna Prakash and A.E. Dick Howard for providing instrumental advice during the development of this Note, and Professors Caleb Nelson and John Harrison for offering insightful comments on previous drafts.
  2. See, e.g., Gravel v. United States, 408 U.S. 606, 616 (1972) (immunity from suit); United States v. Johnson, 383 U.S. 169, 184–85 (1966) (evidentiary privilege).
  3. The Supreme Court recognized Article 9 of the English Bill of Rights as the predecessor of the Speech or Debate Clause in its first interpretation of the Clause in Kilbourn v. Thompson, 103 U.S. 168, 202 (1880).
  4. The Bill of Rights 1689, 1 W. & M. c. 2.
  5. U.S. Const
    .

    art. I, § 6, cl. 1.

  6. United States v. Brewster, 408 U.S. 501, 502, 509 (1972) (where a former senator was charged with bribery (citing Ex parte Wason [1869] 4 LRQB 573 at [577])); Johnson, 383 U.S. at 170–71, 183 (where a former congressman was charged with conspiracy to defraud the United States (citing Ex parte Wason, 4 LRQB at [576]–[77])).
  7. R v. Chaytor [2010] UKSC 52, [38], [2011] 1 AC 684, 704.

Liberalism and Disagreement in American Constitutional Theory

For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and non-originalism describe important differences between families of constitutional methodologies, the foundations of the disagreement among theorists are the justifications that they offer for those methodologies, not the methodologies themselves. Once the debate is refocused on the justifications that theorists offer for their constitutional methodologies, it becomes clear that the debate within constitutional theory is ultimately a debate about liberalism as a political theory. Specifically, it is a debate about two propositions that are central to the liberal tradition: individualism and rationalism. Viewed in this way, constitutional theorists often thought to be opposed to each other are, in fact, allies in the debate over liberalism, even if they disagree about whether their shared theoretical premises imply an originalist or non-originalist methodology. Conversely, theorists often seen as allies profoundly disagree about the premises of their constitutional theories because they disagree about liberalism. Reorienting American constitutional theory to focus on the disagreement over liberalism will help us identify which constitutional theory is best and better understand the outcomes in important constitutional cases.

Introduction

The story of American constitutional theory over the last forty years has been the battle between originalism and non-originalism. In the academy, the field of constitutional theory has been organized into these two camps1.See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice 26 (Apr. 3, 2019) (unpublished manuscript) (on file with author), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2940215 [https://perma.cc/27DK-CPBY] (“normative constitutional theory is currently in a state of dialectical impasse” between originalists and non-originalists); Jack M. Balkin, Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time, 98 Tex. L. Rev. 215, 245 (2019) (describing originalism and living constitutionalism as “the two major schools of modern constitutional theory”); David Singh Grewal & Jedediah Purdy, The Original Theory of Constitutionalism, 127 Yale L.J. 664, 666 (2018) (book review) (“The conflict between various versions of ‘originalism’ and ‘living constitutionalism’ has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating.”); Joel K. Goldstein, History and Constitutional Interpretation: Some Lessons from the Vice Presidency, 69 Ark. L. Rev. 647, 647 (2016) (“In recent times, the principal demarcation in academic discussions of constitutional theory and judicial decision-making separates originalists and living constitutionalists.”); Louis J. Virelli III, Constitutional Traditionalism in the Roberts Court, 73 U. Pitt. L. Rev. 1, 11 (2011) (“Constitutional theory is often described as consisting of two distinct and entrenched camps: ‘living constitutionalism’ and ‘originalism.’”); David A. Strauss, The Living Constitution 7–49 (2010) (framing his argument in terms of originalism versus living constitutionalism); Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 241 (2009) (“For the last several decades, the primary divide in American constitutional theory has been between those theorists who label themselves as ‘originalists’ and those who do not.”); Brannon P. Denning, Brother, Can You Paradigm?, 23 Const. Comment. 81, 81 (2006) (book review) (describing the debate between originalism and non-originalism as having “dominated constitutional theory since at least the mid-twentieth century”); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 38 (Amy Gutmann ed., 1997) (“[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning.”); Michael P. Zuckert, The New Rawls and Constitutional Theory: Does It Really Taste That Much Better?, 11 Const. Comment. 227, 236 (1994); Robert H. Bork, The Tempting of America: The Political Seduction of the Law 251–59 (1990) (framing his argument in terms of originalism versus “revisionist” non-originalism).Show More since Paul Brest first coined the term “originalism” in 1980.2.Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 204 (1980); see Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 459 (2013) (identifying Brest’s 1980 article as having coined the term “originalism”).Show More In our politics, the originalism/non-originalism dichotomy has been a defining feature of judicial confirmation battles since the Reagan Administration.3.Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History 133–89 (2005).Show More The conflict between originalism and non-originalism has accordingly been described as “the great debate” in constitutional theory,4.Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1244 (2019).Show More with the future of constitutional law depending on which side emerges triumphant.5.See, e.g., Strauss, supra note 1, at 12–18; Tobin Harshaw, Kennedy, Bork and the Politics of Judicial Destruction, N.Y. Times: Opinionator (Aug. 28, 2009, 7:23 PM), https://opinionator.blogs.nytimes.com/2009/08/28/weekend-opinionator-kennedy-bork-and-the-politics-of-judicial-destruction/ [https://perma.cc/3F28-XDP9] (describing Senator Ted Kennedy’s “Robert Bork’s America” speech).Show More This binary and zero-sum way of understanding American constitutional theory has been prominent in recent years, with Donald Trump’s three Supreme Court appointments seen as potentially ushering in a new era of originalist jurisprudence at the Court.6.See, e.g., Jess Bravin, Brent Kendall & Jacob Gershman, What Trump Pick Amy Coney Barrett Could Mean for Future of the Supreme Court, Wall St. J. (Sept. 26, 2020, 5:19 PM), https://www.wsj.com/articles/what-trump-pick-amy-coney-barrett-could-mean-for-future-of-the-supreme-court-11601155192 [https://perma.cc/P3R9-AKLS].Show More In both law and politics, then, understanding the debate within American constitutional theory as a battle between originalism and non-originalism—a way of understanding the debate that I will call the “Standard Approach” to constitutional theory—is so common that it is rarely questioned.7.But see Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 404 n.120 (2013) (“I wish it went without saying that I do not believe that constitutional theory can simply be reduced to this particular dichotomy between originalists and nonoriginalists.”).Show More

Yet, there is a general sense that, for all its fervor, the argument between originalists and non-originalists has become exhausted.8.Jonathan L. Marshfield, Amendment Creep, 115 Mich. L. Rev. 215, 224 (2016) (describing “the tired normative debate regarding the best method of constitutional interpretation”); Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1753 (2015) (describing “increasingly tired, stylized debates of the form ‘Originalism: For or Against?’”); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2351 (2015) (asserting that the debate over originalism is “at a standstill”); Brannon P. Denning, The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller, 75 Tenn. L. Rev. 789, 794 (2008) (describing “the stalemated (and stale) debates between originalists and nonoriginalists”). Some might disagree and say that the debate remains fruitful, but even if one thinks the current debate is robust, my argument below should prompt a reevaluation of whether the current framing of the debate is the most productive form that the debate could take within constitutional theory, or whether instead we would be better served by reframing the debate in the manner suggested below. See infra Section II.C.Show More While the first few decades of the debate between originalists and non-originalists featured significant advances,9.See generally Keith E. Whittington, The New Originalism, 2 Geo. J.L. Pub. Pol’y 599 (2004) (describing the development of originalism in response to non-originalist criticisms in the 1980s and 1990s); see also O’Neill, supra note 3, at 133–216 (same).Show More recent developments have largely consisted—with rare exceptions10 10.William Baude and Stephen Sachs have recently proposed a genuinely novel argument in favor of originalism that relies on legal positivism. See Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. Pub. Pol’y 817, 822–38 (2015); Baude, supra note 8, at 2363–91.Show More—of refinements of each side’s previous arguments.11 11.See Steven D. Smith, That Old-Time Originalism, in The Challenge of Originalism: Theories of Constitutional Interpretation 223, 224–42 (Grant Huscroft & Bradley W. Miller eds., 2011) (describing the increasingly abstruse refinements of originalist theory).Show More Many of these refinements are insightful and important, to be sure, but they have generally failed to change the contours of the debate.12 12.The development that arguably has changed the contours of the debate is the introduction of the interpretation/construction distinction, but that distinction has mostly tended to confuse the debate. See infra Subsection I.B.1.Show More

But what if we have been misunderstanding the nature of the debate within American constitutional theory? What if the fundamental disagreement within American constitutional theory is not between originalists and non-originalists, and our focus on that (though real and important) distinction has obscured our ability to see more profound areas of agreement and disagreement among theorists that transcend the originalism/non-originalism dichotomy? What if, in short, the Standard Approach is impeding constitutional theory?

I want to suggest that this is indeed the case. The debate within American constitutional theory is not, ultimately, about originalism and non-originalism; it is about liberalism. I do not mean “liberalism” as that term is understood in contemporary American political discourse, where the term “liberal” is associated with the Democratic Party and its policy proposals. Liberalism, as I am using the term, refers instead to a politico-theoretical tradition that has its roots in the Renaissance13 13.Anthony Arblaster, The Rise and Decline of Western Liberalism 95 (1984). Some might date the birth of liberalism to the immediate aftermath of the Renaissance, see John Gray, Liberalism, at xi, 9 (2d ed. 1995), though the distinction is somewhat arbitrary.Show More and includes among its foremost theorists figures like John Locke and John Stuart Mill.14 14.Alan Ryan, The Making of Modern Liberalism 21–26 (2012).Show More It could be argued that the American Constitution is a “liberal” constitution in this sense of the word,15 15.Patrick J. Deneen, Why Liberalism Failed 101 (2018); Gray, supra note 13, at 22–24.Show More since it was influenced by Lockean thought,16 16.Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution 3–32 (reprt., 2d Harvest ed. 1991) (1955); Patrick J. Deneen, Better Than Our Philosophy: A Response to Muñoz, Pub. Discourse (Nov. 29, 2012), https://www.thepublicdiscourse.com/2012/11/7156/ [https://perma.cc/VB83-7JVD]. The extent of Locke’s influence on the American Founding is, however, contested. See, e.g., Robert R. Reilly, For God and Country, XVII Claremont Rev. of Books 44, 47 (2017); Nathan Schlueter, Sustainable Liberalism, Pub. Discourse (Dec. 7, 2012), https://www.thepublicdiscourse.com/2012/12/7322/ [https://perma.cc/5YUP-WJQ9].Show More and many in both the Republican and Democratic parties could be considered “liberals” insofar as they implicitly or explicitly begin from certain philosophical premises that are antecedent to their disagreements about things like marginal tax rates.17 17.Deneen, supra note 15, at 43–63.Show More My argument, then, is that the debate within American constitutional theory is, at its deepest level, a debate about political theory.

Specifically, it is a debate about some of the core philosophical propositions associated with the liberal tradition, and although there are undoubtedly many such propositions that are debated within American constitutional theory, the two most salient in that debate are individualism and rationalism. These are contested terms, and I will describe them more fully below.18 18.See infra Section II.A.Show More By “individualism,” I mean the view that the individual has primacy over society, in the sense that the obligation to obey political authority must be grounded in the individual’s choice to submit to that authority.19 19.See Yuval Levin, The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left 91–125 (2014); Arblaster, supra note 13, at 21–23.Show More The idea of individualism is well-captured by state-of-nature theorists in the liberal tradition, who derive political principles from a hypothetical world before the advent of government.20 20.See infra Subsection II.A.1.Show More Rationalism is closely related to this view and asserts the primacy of individual reason above all other sources of knowledge, such as tradition or custom.21 21.See infra Subsection II.A.2.Show More In Michael Oakeshott’s famous description, for a rationalist, “there is no opinion, no habit, no belief, nothing so firmly rooted or so widely held that he hesitates to question it and to judge it by what he calls his ‘reason.’”22 22.Michael Oakeshott, Rationalism in Politics, in Rationalism in Politics and Other Essays 5, 6 (1991).Show More These beliefs about the human person are controversial, and they are opposed by philosophical conservatism, among other intellectual traditions.23 23.As discussed below, I will assume, solely for the sake of clarity of presentation, that philosophical conservatism is distinct from liberalism. See infra Section II.A.Show More

The politico-theoretical debates about individualism and rationalism are, I will argue, at the core of the debates within American constitutional theory,24 24.See infra Section II.B.Show More and they reveal agreements and disagreements among theorists that cut across the originalism/non-originalism divide.25 25.See infra Section II.B.Show More Whereas Robert Bork (an originalist) and David Strauss (a non-originalist) might be thought of as polar opposites under the Standard Approach, they in fact share key philosophical premises, and, conversely, Bork and Jack Balkin, despite both being originalists under the Standard Approach, are in fact deeply opposed to each other philosophically.26 26.See infra Section II.C.Show More Recognizing these cross-cutting agreements and disagreements about the premises of constitutional theory will make it more likely that we will be able to identify which theories are sounder than others and provide us with insight into the deeper basis for disagreement among theorists about cases like Obergefell v. Hodges27 27.Obergefell v. Hodges, 576 U.S. 644 (2015); see infra Section II.C.Show More and, though arising in a statutory context, Bostock v. Clayton County.28 28.Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020); see infra Section III.A.Show More

For example, subsurface disagreements about liberalism explain why, at an intuitive level, it seems strange to classify Bork and Balkin as being part of the same school of thought: Bork and Balkin have radically opposed understandings of human reason. Balkin stakes the legitimacy of the Constitution on its ability to reflect human progress through changes in constitutional meaning, a faith in progress that assumes an exalted view of individual reason.29 29.See infra Section II.B.Show More By contrast, Bork’s anti-rationalism comes through in his skepticism of abstract theorizing and attempt to ground his theory in our constitutional tradition.30 30.See infra Section II.B.Show More These philosophical differences lead to an irreconcilable, intra-originalist methodological dispute: Balkin’s rationalistic theory leads him to a methodology that places minimal constraints on judges, while Bork’s anti-rationalism leads him to a methodology with a much more modest judicial role.31 31.See infra Section II.C.Show More Bork and Balkin are ultimately disagreeing about liberal rationalism, and in light of such a profound disagreement, the strangeness of thinking of them as allies becomes understandable.

But it is often difficult to see these unexpected areas of agreement and disagreement among theorists—and the important questions they raise—because of the focus on the originalism/non-originalism dichotomy that results from the Standard Approach. And this is a major reason—perhaps the reason—why constitutional theory has reached an impasse. The Standard Approach, by dividing constitutional theory into originalism and non-originalism, causes us to focus on methodologies—that is, decision procedures for adjudicating constitutional disputes—rather than focusing on the justifications that theorists offer for their methodologies.32 32.See infra Part I.Show More That is not to say that the Standard Approach ignores justifications; nor is it to say that theorists should cease categorizing theories as originalist or non-originalist. But viewing constitutional theory through a methodological lens causes debates about justifications to become distorted, with justifications being viewed as either originalist or non-originalist.33 33.See infra Part I.Show More Perhaps ironically, by focusing on methodologies, the Standard Approach prevents us from seeing the extent to which some theorists disagree about methodologies.34 34.See infra Section II.C.Show More A principal goal of this Article is to demonstrate the problems with the Standard Approach’s emphasis on methodologies and the advantages of a justifications-based approach to constitutional theory.

Indeed, since that is a threshold task, it is where this Article will begin. In Part I, I will describe the Standard Approach to constitutional theory and identify the two main problems with organizing the debate in constitutional theory around methodologies of constitutional adjudication rather than the justifications for those methodologies.

This sets up the argument of Part II, in which I will sketch a justifications-based approach to constitutional theory. Section II.A will provide a fuller account of individualism and rationalism, and Section II.B, in turn, will show that the premises of several major constitutional theories—both originalist and non-originalist—depend on the acceptance or rejection of these two liberal propositions. I will argue that individualism and rationalism are foundational to some constitutional theories, while anti-individualism and anti-rationalism are foundational to others, and the acceptance or rejection of these two liberal propositions, far from tracking the originalism/non-originalism dichotomy, transcends it. Section II.C will pull these strands of argument together and show that the benefit of a justifications-based approach to constitutional theory is that we can identify crucial areas of agreement and disagreement across the originalism/non-originalism divide, which makes it much more likely that theorists will be able to identify the best constitutional theory and better understand doctrinal disagreements.

Finally, Part III will address various objections and counterarguments that are best left for the end, such as the argument that a justifications-based approach would shift constitutional scholarship too far in the direction of political theory and away from doctrine.

American constitutional theory is too complex, and the stakes are too high, for any single idea to serve as a panacea, and I certainly do not claim to be offering one. But the Standard Approach makes progress in constitutional theory less likely, and after forty years, it is time to try a new approach.

  1. * Assistant Professor of Law, the Catholic University of America, Columbus School of Law. I thank Richard Fallon, Jack Goldsmith, Jeff Pojanowski, Nelson Lund, Yuval Levin, Sherif Girgis, Alex Potapov, John Ohlendorf, and Henry Stephan for their comments on earlier drafts. I also thank Bonaventure Chapman, Melissa Lane, Philip Neri Reese, Dominic Verner, and the participants of the Catholic Law Faculty Research Series workshop for helpful conversations or email exchanges. Finally, I thank Steve Young and Tabitha Kempf for outstanding research assistance.
  2. See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice 26 (Apr. 3, 2019) (unpublished manuscript) (on file with author), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2940215 [https://perma.cc/27DK-CPBY] (“normative constitutional theory is currently in a state of dialectical impasse” between originalists and non-originalists); Jack M. Balkin, Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time, 98 Tex. L. Rev. 215, 245 (2019) (describing originalism and living constitutionalism as “the two major schools of modern constitutional theory”); David Singh Grewal & Jedediah Purdy, The Original Theory of Constitutionalism, 127 Yale L.J. 664, 666 (2018) (book review) (“The conflict between various versions of ‘originalism’ and ‘living constitutionalism’ has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating.”); Joel K. Goldstein, History and Constitutional Interpretation: Some Lessons from the Vice Presidency, 69 Ark. L. Rev. 647, 647 (2016) (“In recent times, the principal demarcation in academic discussions of constitutional theory and judicial decision-making separates originalists and living constitutionalists.”); Louis J. Virelli III, Constitutional Traditionalism in the Roberts Court, 73 U. Pitt. L. Rev. 1, 11 (2011) (“Constitutional theory is often described as consisting of two distinct and entrenched camps: ‘living constitutionalism’ and ‘originalism.’”); David A. Strauss, The Living Constitution 7–49 (2010) (framing his argument in terms of originalism versus living constitutionalism); Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 241 (2009) (“For the last several decades, the primary divide in American constitutional theory has been between those theorists who label themselves as ‘originalists’ and those who do not.”); Brannon P. Denning, Brother, Can You Paradigm?, 23 Const. Comment. 81, 81 (2006) (book review) (describing the debate between originalism and non-originalism as having “dominated constitutional theory since at least the mid-twentieth century”); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 38 (Amy Gutmann ed., 1997) (“[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning.”); Michael P. Zuckert, The New Rawls and Constitutional Theory: Does It Really Taste That Much Better?, 11 Const. Comment. 227, 236 (1994); Robert H. Bork, The Tempting of America: The Political Seduction of the Law 251–59 (1990) (framing his argument in terms of originalism versus “revisionist” non-originalism).
  3. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 204 (1980); see Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 459 (2013) (identifying Brest’s 1980 article as having coined the term “originalism”).
  4. Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History 133–89 (2005).
  5. Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1244 (2019).
  6. See, e.g., Strauss, supra note 1, at 12–18; Tobin Harshaw, Kennedy, Bork and the Politics of Judicial Destruction, N.Y. Times: Opinionator (Aug. 28, 2009, 7:23 PM), https://opinionator.blogs.nytimes.com/2009/08/28/weekend-opinionator-kennedy-bork-and-the-politics-of-judicial-destruction/ [https://perma.cc/3F28-XDP9] (describing Senator Ted Kennedy’s “Robert Bork’s America” speech).
  7. See, e.g., Jess Bravin, Brent Kendall & Jacob Gershman, What Trump Pick Amy Coney Barrett Could Mean for Future of the Supreme Court, Wall St. J. (Sept. 26, 2020, 5:19 PM), https://www.wsj.com/articles/what-trump-pick-amy-coney-barrett-could-mean-for-future-of-the-supreme-court-11601155192 [https://perma.cc/P3R9-AKLS].
  8. But see Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 404 n.120 (2013) (“I wish it went without saying that I do not believe that constitutional theory can simply be reduced to this particular dichotomy between originalists and nonoriginalists.”).
  9. Jonathan L. Marshfield, Amendment Creep, 115 Mich. L. Rev. 215, 224 (2016) (describing “the tired normative debate regarding the best method of constitutional interpretation”); Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1753 (2015) (describing “increasingly tired, stylized debates of the form ‘Originalism: For or Against?’”); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2351 (2015) (asserting that the debate over originalism is “at a standstill”); Brannon P. Denning, The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller, 75 Tenn. L. Rev. 789, 794 (2008) (describing “the stalemated (and stale) debates between originalists and nonoriginalists”). Some might disagree and say that the debate remains fruitful, but even if one thinks the current debate is robust, my argument below should prompt a reevaluation of whether the current framing of the debate is the most productive form that the debate could take within constitutional theory, or whether instead we would be better served by reframing the debate in the manner suggested below. See infra Section II.C.
  10. See generally Keith E. Whittington, The New Originalism, 2 Geo. J.L. Pub. Pol’y 599 (2004) (describing the development of originalism in response to non-originalist criticisms in the 1980s and 1990s); see also O’Neill, supra note 3, at 133–216 (same).
  11. William Baude and Stephen Sachs have recently proposed a genuinely novel argument in favor of originalism that relies on legal positivism. See Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. Pub. Pol’y 817, 822–38 (2015); Baude, supra note 8, at 2363–91.
  12. See Steven D. Smith, That Old-Time Originalism, in The Challenge of Originalism: Theories of Constitutional Interpretation 223, 224–42 (Grant Huscroft & Bradley W. Miller eds., 2011) (describing the increasingly abstruse refinements of originalist theory).
  13. The development that arguably has changed the contours of the debate is the introduction of the interpretation/construction distinction, but that distinction has mostly tended to confuse the debate. See infra Subsection I.B.1.
  14. Anthony Arblaster, The Rise and Decline of Western Liberalism 95 (1984). Some might date the birth of liberalism to the immediate aftermath of the Renaissance, see John Gray, Liberalism, at xi, 9 (2d ed. 1995), though the distinction is somewhat arbitrary.
  15. Alan Ryan, The Making of Modern Liberalism 21–26 (2012).
  16. Patrick J. Deneen, Why Liberalism Failed 101 (2018); Gray, supra note 13, at 22–24.
  17. Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution 3–32 (reprt., 2d Harvest ed. 1991) (1955); Patrick J. Deneen, Better Than Our Philosophy: A Response to Muñoz, Pub. Discourse (Nov. 29, 2012), https://www.thepublicdiscourse.com/2012/11/7156/ [https://perma.cc/VB83-7JVD]. The extent of Locke’s influence on the American Founding is, however, contested. See, e.g., Robert R. Reilly, For God and Country, XVII Claremont Rev. of Books 44, 47 (2017); Nathan Schlueter, Sustainable Liberalism, Pub. Discourse (Dec. 7, 2012), https://www.thepublicdiscourse.com/2012/12/7322/ [https://perma.cc/5YUP-WJQ9].
  18. Deneen, supra note 15, at 43–63.
  19. See infra Section II.A.
  20. See Yuval Levin, The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left 91–125 (2014); Arblaster, supra note 13, at 21–23.
  21. See infra Subsection II.A.1.
  22. See infra Subsection II.A.2.
  23. Michael Oakeshott, Rationalism in Politics, in Rationalism in Politics and Other Essays 5, 6 (1991).
  24. As discussed below, I will assume, solely for the sake of clarity of presentation, that philosophical conservatism is distinct from liberalism. See infra Section II.A.
  25. See infra Section II.B.
  26. See infra Section II.B.
  27. See infra Section II.C.
  28. Obergefell v. Hodges, 576 U.S. 644 (2015); see infra Section II.C.
  29. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020); see infra Section III.A.
  30. See infra Section II.B.
  31. See infra Section II.B.
  32. See infra Section II.C.
  33. See infra Part I.
  34. See infra Part I.
  35. See infra Section II.C.
  36. See David A. Strauss, What Is Constitutional Theory?, 87 Calif. L. Rev. 581, 582–83 (1999); Richard H. Fallon, Jr., How to Choose a Constitutional Theory, 87 Calif. L. Rev. 535, 537 (1999); Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. Rev. 1, 1–4 (1998). Although “adjudication” has a distinctively judicial connotation, I do not intend to exclude methodologies describing how the political branches should interpret the Constitution. See, e.g., Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1, 9–13 (2016); see generally Joel Alicea, Stare Decisis in an Originalist Congress, 35 Harv. J.L. Pub. Pol’y 797 (2012).
  37. See, e.g., Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 Geo. L.J. 1837, 1838–39 (1997).
  38. I use the phrase “constitutional adjudication” rather than “constitutional interpretation” because, as discussed below, see infra Subsection I.B.1, some scholars have proposed distinguishing between constitutional “interpretation” and constitutional “construction.” By “adjudication,” I mean to encompass both “interpretation” and “construction,” as these theorists have used those terms.
  39. Andrew Coan, The Foundations of Constitutional Theory, 2017 Wis. L. Rev. 833, 835–36 (2017) (emphasis omitted). It is also consistent with how other theorists think about the elements of a constitutional theory. See Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court 132–33 (2018) (distinguishing between “methodological premises or commitments” that “seek to specify the criteria of decision that the Justices should, or at least legitimately can, apply” and “defense[s] on partly normative grounds” that “the embrace of an interpretive methodology requires”); Randy J. Kozel, Settled Versus Right: A Theory of Precedent 64 (2017) (similar). But see Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. (forthcoming 2022) (arguing that originalism should not be understood as a decision procedure).
  40. James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893).
  41. Id.
  42. Id. at 134–35.
  43. See supra notes 1–2 and accompanying text.
  44. Coan, supra note 38, at 835 (noting that scholars have generally tended to focus on methodologies over justifications).
  45. Solum, supra note 4, at 1265–66.
  46. See, e.g., Larry Alexander, Simple-Minded Originalism, in The Challenge of Originalism, supra note 11, at 87; Larry Alexander & Saikrishna Prakash, “Is That English You’re Speaking?” Why Intention Free Interpretation is an Impossibility, 41 San Diego L. Rev. 967, 972, 982 (2004).
  47. See, e.g., Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L.J. 1113, 1132 (2003); Scalia, supra note 1, at 38.
  48. See, e.g., John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 Nw. U. L. Rev. 803, 829 (2009); Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 5–8 (2001).
  49. See, e.g., Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Ave Maria L. Rev. 1, 5–8 (2007); Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Const. Comment. 289, 289–98 (2005).
  50. See, e.g., Strauss, supra note 1, at 33–40; David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 884–91 (1996).
  51. See, e.g., Ronald Dworkin, Law’s Empire 225–75 (1986).
  52. See, e.g., Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 Tex. L. Rev. 1753, 1758–62 (1994); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1209–23, 1240–46 (1987).
  53. Solum, supra note 2, at 460–61; see generally Solum, supra note 1, at 139. Solum also relies on the “Fixation Thesis” to define originalism, but as discussed below, that principle is not what primarily divides originalists from non-originalists. See infra Subsection I.B.1.
  54. See Griffin, supra note 51, at 1762–64.
  55. Solum, supra note 2, at 460–61; see also Solum, supra note 1, at 105–28.
  56. Solum, supra note 2, at 472–73; Solum, supra note 1, at 26–30.
  57. Coan, supra note 38, at 882–84.
  58. See generally Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999). For the history of the distinction generally and within originalism specifically, see Solum, supra note 2, at 467–69; Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 10–13 (2018).
  59. Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95, 100 (2010). Although Solum has been the principal developer of the interpretation/construction distinction, it was introduced into constitutional theory by Professor Whittington, see Barnett & Bernick, supra note 57, at 10–11, whose understanding of the distinction was somewhat different from Solum’s.
  60. Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame L. Rev. 479, 502 (2013).
  61. Solum, supra note 58, at 99.
  62. Id. at 103.
  63. Id. at 104–06.
  64. Id. at 103 n.19.
  65. Id. at 104–05.
  66. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 13–15 (2012); Gary Lawson, Dead Document Walking, 92 B.U. L. Rev. 1225, 1231–36 (2012); John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751, 772–80 (2009); see also Smith, supra note 11, at 227–42 (increasingly abstract distinctions within originalism take away from the attractive simplicity of originalism).
  67. See generally Barnett & Bernick, supra note 57 (tracing the history of these concepts within originalism); Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Whittington, supra note 57.
  68. Solum, supra note 58, at 116–17; see also Barnett & Bernick, supra note 57, at 14.
  69. Solum, supra note 58, at 116–17; see also Barnett & Bernick, supra note 57, at 14.
  70. Solum, supra note 1, at 16; Solum, supra note 2, at 472–73. Barnett has recently argued that the range of permissible theories of constitutional construction is narrower than he had previously recognized. See Barnett & Bernick, supra note 57, at 14 & n.58. But Barnett’s view has not been broadly accepted by other originalists (at least not yet), so as things now stand, my description of the upshot of the interpretation/construction distinction remains true.
  71. Solum, supra note 1, at 16; see also Sachs, supra note 10, at 831–32 (”Most everyone accepts that some kind of original meaning is legally relevant sometimes.”); Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 32–33 (2009). But see Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 62–70 (2015) (arguing that some non-originalist theories deny the Fixation Thesis).
  72. Barnett & Bernick, supra note 57, at 15–17; see Solum, supra note 2, at 499–523 (arguing that the construction zone is substantial).
  73. Solum, supra note 58, at 117. As noted above, Solum seems to have retreated from that view in later writings. See Solum, supra note 4, at 1284.
  74. Peter J. Smith, How Different Are Originalism and Non-Originalism?, 62 Hastings L.J. 707, 723 & n.94 (2011) (collecting sources making similar observations); see also Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 750 (2011) (modern originalism mirrors non-originalism in practice).
  75. See, e.g., Joel Alicea, Originalism and the Rule of the Dead, Nat’l Affs., Spring 2015, at 149, https://www.nationalaffairs.com/publications/detail/originalism-and-the-rule-of-the-dead [https://perma.cc/9F5A-M77L]; Smith, supra note 11, at 230–33; Nelson Lund, Living Originalism: The Magical Mystery Tour, 3 Tex. A&M L. Rev. 31, 43 (2015).
  76. Colby & Smith, supra note 1, at 258 (2009).
  77. Balkin, supra note 66. I will describe Balkin’s theory in more detail below. See infra Subsections II.B.1–2.
  78. Balkin, supra note 66, at 20.
  79. Id. at 35–39, 282.
  80. Id. at 21–34, 282.
  81. Balkin’s thin view of constitutional interpretation is dictated by the justification he offers for his theory. See infra Section II.C.
  82. Balkin, supra note 66, at 12–49; Solum, supra note 4, at 1282–83; Lund, supra note 74, at 32–36.
  83. Roe v. Wade, 410 U.S. 113 (1973); see generally Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291 (2007) (arguing that the right to abortion is consistent with the original meaning of the Constitution).
  84. Wickard v. Filburn, 317 U.S. 111 (1942); see Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 34–35 (2010); Balkin, supra note 66, at 164–65.
  85. See United States v. Lopez, 514 U.S. 549, 584–602 (1995) (Thomas, J., concurring) (arguing that Wickard has no basis in the original meaning of the Constitution); Planned Parenthood v. Casey, 505 U.S. 833, 979–1002 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part) (arguing that Roe has no basis in the original meaning of the Constitution).
  86. Solum, supra note 4, at 1282–84.
  87. Solum, supra note 1, at 20 n.55.
  88. See Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156, 165–66 (2017); Smith, supra note 11, at 230–33.
  89. Solum, supra note 4, at 1254.
  90. Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory, in The Challenge of Originalism, supra note 11, at 12, 32.
  91. Though some have tried. See supra note 65.
  92. See, e.g., Alicea, supra note 74, at 154–61.
  93. Compare Randy E. Barnett, Am I “Imperiling” Originalism? A Reply to Joel Alicea, Volokh Conspiracy (Mar. 30, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/30/am-i-imperiling-originalism/ [https://perma.cc/Q4BU-MJ5Z] (responding to Alicea’s article which criticizes Barnett’s view of originalism), with Joel Alicea, “Yes, You are Imperiling Originalism:” A Response to Professor Barnett, Volokh Conspiracy (Apr. 4, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/04/yes-you-are-imperiling-originalism-a-response-to-professor-barnett/ [https://perma.cc/25S6-RE75] (refuting perceived similarities between his view of originalism and Barnett’s).
  94. See Solum, supra note 4, at 1244–48.
  95. See id. at 1247–48.
  96. See Smith, supra note 73, at 729–30.
  97. See supra note 35.
  98. Fallon, supra note 38, at 136–37.
  99. Id. at 137.
  100. Id. at 142–48.
  101. See, e.g., Berman, supra note 70, at 4–8; Mark. S. Stein, Originalism and Original Exclusions, 98 Ky. L.J. 397, 397–406 (2009–2010).
  102. See, e.g., Whittington, supra note 9, at 599.
  103. Of course, as pluralist theories of constitutional adjudication like Fallon’s demonstrate, the question of whether there is a correct methodology of constitutional adjudication is distinct from the question of whether there are correct (or at least privileged) modalities of constitutional adjudication, though one must answer the latter question to determine which methodology is correct. See Fallon, supra note 51, at 1209–17 (arguing, in the context of an article justifying a pluralist methodology, that originalism errs by privileging text and history over other modalities).
  104. Some theorists would answer “no.” See, e.g., Richard A. Posner, Legal Pragmatism Defended, 71 U. Chi. L. Rev. 683, 683–84 (2004); see also Solum, supra note 1, at 122–26 (describing theories that reject a single methodology of adjudication).
  105. Even if I am wrong about this, the principal goal of constitutional theorists is, at the very least, to describe and justify the best subset of methodologies of constitutional adjudication, even if there is no single correct theory. My argument in the rest of this Section would remain valid under this more modest description of constitutional theory’s goal.
  106. Kozel, supra note 38, at 64 (“Normative commitments are the paths to interpretive methodology.”).
  107. See John Rawls, Political Liberalism 133–72 (expanded ed. 1996). I thank John Ohlendorf for pointing out this important objection.
  108. See Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1128 (1998).
  109. See infra Subsection II.B.1.
  110. See supra Subsection I.B.1.
  111. See John D. Arras, Methods in Bioethics: The Way We Reason Now 192–96 (James Childress & Matthew Adams eds., 2017) (making a similar argument about the possibility of an overlapping consensus in bioethics).
  112. John Rawls, A Theory of Justice 17–18, 42–45 (rev. ed. 1999).
  113. Id. at 18.
  114. See Fallon, supra note 38, at 142–48; Richard H. Fallon, Jr., Arguing in Good Faith About the Constitution: Ideology, Methodology, and Reflective Equilibrium, 84 U. Chi. L. Rev. 123, 139–44 (2017); Fallon, supra note 35, at 576 n.224.
  115. See Solum, supra note 1, at 30–35. Solum, for instance, employs it only for justifying the Constraint Principle, and he does not use canonical cases as part of his equilibrium analysis. See id. at 83–86.
  116. Arras, supra note 110, at 197–200. This implicates deep questions about how we know whether something is true, which is beyond the scope of this Article.
  117. Id. at 192–96. I understand Solum to be making the same point. See Solum, supra note 1, at 33–35.
  118. This was Rawls’s aim, Arras, supra note 110, at 194–95, and it appears to be Solum’s as well. See Solum, supra note 1, at 34–35.
  119. See, e.g., John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 1–115 (2013); Strauss, supra note 1, at 1–50; Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 1–88 (2004); Whittington, supra note 66, at 47–159.
  120. See, e.g., Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 Colum. L. Rev. 1482 (2007); Fallon, supra note 38, at 1–19; Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787 (2005).
  121. Smith, supra note 11, at 227–30 (warning of the dangers of increasing levels of abstraction in constitutional theory); see also Bork, supra note 1, at 133–35 (same).
  122. For example, although I describe Locke as an individualist, some would disagree with that description. See Ruth W. Grant, John Locke on Custom’s Power and Reason’s Authority, 74 Rev. Pol. 607, 608 n.2 (2012) (cataloguing contrasting views about whether Lockeanism is individualistic). And while I put forward an interpretation of Mill, “what the liberalism is that [Mill] defends and how [he] defends it remain matters of controversy.” Ryan, supra note 14, at 292.
  123. Ryan, supra note 14, at 23.
  124. Id. at 21; see also Jeremy Waldron, Theoretical Foundations of Liberalism, 37 Phil. Q. 127, 127–28 (1987) (the term “liberalism” includes a range of views without “any set of doctrines or principles that are held in common”).
  125. Assuming, that is, that I have successfully shown that justifications, rather than methodologies, are the fundamental areas of disagreement in constitutional theory. See supra Subsection I.B.2.
  126. This is partly because conservatism is itself a contested concept. See, e.g., Samuel P. Huntington, Conservatism as an Ideology, 51 Am. Pol. Sci. Rev. 454, 454–61 (1957).
  127. See, e.g., Levin, supra note 19, at xvi; Pierre Manent, An Intellectual History of Liberalism 80 (Rebecca Balinski trans., 1994); Gray, supra note 13, at 20; Guido de Ruggiero, The History of European Liberalism 78–84 (R.G. Collingwood trans., Beacon Press 1959) (1927).
  128. See generally Sanford Lakoff, Tocqueville, Burke, and the Origins of Liberal Conservatism, 60 Rev. of Pol. 435, 442–46 (1998).
  129. Ryan, supra note 14, at 24.
  130. Roger Scruton, The Meaning of Conservatism 182–94 (3d ed. Palgrave 2001) (1980).
  131. See, e.g., Deneen, supra note 15, at 1–42; Yuval Levin, After Progressivism, First Things (May 2012), https://www.firstthings.com/article/2012/05/after-progressivism [https://perma.cc/U45J-Y2S7].
  132. Levin, supra note 130.
  133. Waldron, supra note 123, at 140 (“[L]iberalism is not a monolithic tradition.”).
  134. Gray, supra note 13, at xiii; see also D.J. Manning, Liberalism 13 (1976) (noting persistent themes throughout the differing strains of liberalism).
  135. Ryan, supra note 14, at 23–40. So did Waldron. See Waldron, supra note 123, at 129–40.
  136. Arblaster, supra note 13, at 13 (emphasis omitted).
  137. My analysis in this Article was developed independently of Coan’s and differs from his important project in several ways. To take just two examples: (1) he does not argue against the Standard Approach, choosing instead to argue in favor of more attention to justifications; and (2) he organizes justifications based on types of arguments (e.g., whether a justification is procedural in nature) rather than on whether theorists agree or disagree about particular substantive claims, such as individualism or rationalism.
  138. See Coan, supra note 38, at 840.
  139. Arblaster, supra note 13, at 15.
  140. See id. at 15–54; Gray, supra note 13, at xii; see also Deneen, supra note 15, at 31–34, 43–63; Kenneth Minogue, The Liberal Mind 46–52 (Liberty Fund, Inc. 2000) (1963); Scruton, supra note 129, at 64–66; C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke 1 (1962).
  141. John Finnis, Natural Law & Natural Rights 198–210 (2d ed. 2011) (rights-talk, though modern, is simply a useful way of describing the demands of justice in the natural-law tradition); see also Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World 115–16 (2002) (noting that classical lawyers saw justice as the giving of rights due); Gray, supra note 13, at 6.
  142. Arblaster, supra note 13, at 21–23.
  143. Id. at 40–41.
  144. Levin, supra note 19, at 91–125.
  145. John Locke, The Second Treatise of Government, in The Second Treatise of Government and a Letter Concerning Toleration 2–7 (Tom Crawford ed., Dover Publ’ns, Inc. 2002) (1946); see also Levin, supra note 19, at 44–52; Thomas Paine, Rights of Man, in Collected Writings 464–65 (Eric Foner ed., 1995).
  146. Locke, supra note 144, at 2–10; see also L.T. Hobhouse, Liberalism 20–21 (1911). Locke’s description of the state of nature is complicated, see Macpherson, supra note 139, at 240–41, and I have oversimplified for present purposes.
  147. Jean-Jacques Rousseau, Discourse on the Origin and Foundation of Inequality Among Men, or Second Discourse, in Rousseau: The Discourses and Other Early Political Writings 115, 145–46, 149 (Victor Gourevitch ed. & trans., 1997).
  148. Locke, supra note 144, at 35–38; Manent, supra note 126, at 44; Manning, supra note 133, at 121. Nonetheless, Deneen has argued that Locke’s conception of familial relations is individualistic and anti-social. See, e.g., Deneen, supra note 15, at 32–33.
  149. Manent, supra note 126, at 42.
  150. Id. at 48.
  151. Id.; Locke, supra note 144, at 8–10, 44.
  152. Locke, supra note 144, at 44–45; Gray, supra note 13, at 13–14.
  153. Locke, supra note 144, at 44.
  154. Id. at 57–59.
  155. Rawls, supra note 111, at 10.
  156. Id. at 10–19, 118–30; Ryan, supra note 14, at 509.
  157. On the individualism of Rawls’s theory, see Michael J. Sandel, Liberalism and the Limits of Justice 59–65 (1982).
  158. Gray, supra note 13, at 30; Hobhouse, supra note 145, at 43.
  159. Ryan, supra note 14, at 318; Manning, supra note 133, at 13.
  160. Ryan, supra note 14, at 318; John Stuart Mill, On Liberty, in On Liberty and Other Writings 1, 75 (Stefan Collini ed., 1989).
  161. See Mill, supra note 159, at 14 (“I regard utility as the ultimate appeal on all ethical questions.”); Ryan, supra note 14, at 263–64.
  162. See Ryan, supra note 14, at 262 (observing that Mill “advanced a much enlarged role for government and public opinion alike” with respect to enforcing parental responsibilities); Gray, supra note 13, at 29–30; Hobhouse, supra note 145, at 25–26.
  163. Arblaster, supra note 13, at 41–43.
  164. Mill, supra note 159, at 15.
  165. Id. at 5; see also id. at 8–9 (describing the tyranny of public opinion).
  166. See infra Subsection II.A.2. There is, therefore, a close connection between Mill’s individualism and rationalism.
  167. Mill, supra note 159, at 13.
  168. Id.
  169. Ryan, supra note 14, at 362.
  170. Id.; Mill, supra note 159, at 13. One might object that I have defined liberalism solely based on the English liberal tradition and that other liberal traditions, such as the French tradition, are not as individualistic. See Larry Siedentop, Two Liberal Traditions, in The Idea of Freedom: Essays in Honour of Isaiah Berlin 153, 153–56 (Alan Ryan ed., 1979). Such a clean division between English and French liberalism is contested. See Gray, supra note 13, at 22–23; Ruggiero, supra note 126, at 347. In any event, nothing important would change about my argument if the reader chose to substitute “English liberalism” for “liberalism” throughout this text.
  171. Mill, supra note 159, at 56–74 (arguing for the primacy of individuality); see also Gray, supra note 13, at 29 (In On Liberty, “Mill’s commitment to liberal individualism is much more prominent than his commitment to Utilitarian social reform.”); Macpherson, supra note 139, at 2 (describing the utilitarian doctrine as a restatement of individualist principles); Hobhouse, supra note 145, at 112, 120.
  172. Deneen, supra note 15, at 46–47; see also id. at 16–18, 43–63 (arguing that individualism and statism reinforce each other). Others have made similar arguments or observations, with Macpherson’s argument being among the most detailed. See Macpherson, supra note 139, at 255–57 (arguing that individualism and collectivism reinforce each other and that Locke’s individualism requires the role of the state); see also Scruton, supra note 129, at 38–41; Manning, supra note 133, at 53. That being said, I do not mean to suggest that the transition from state-of-nature theories to Mill is seamless; they differ in important ways. See, e.g., Ryan, supra note 14, at 310–11; Gray, supra note 13, at 29–30. I am only arguing that they share a commitment to individualism.
  173. Jed Rubenfeld has noted this connection between individualism and the severing of intergenerational relations, though he seems to think that the breakdown in intergenerational relations precedes individualism rather than vice-versa. See Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government 22–26, 68–70 (2001).
  174. Locke, supra note 144, at 23–35. Although he was writing about democracy, not liberalism per se, Tocqueville’s description of the way in which individualism leads to a severing of relationships between generations is applicable here. See 2 Alexis de Tocqueville, Democracy in America 99 (Phillips Bradley ed., Henry Reeve trans., Alfred A. Knopf, Inc. 1945) (“Thus not only does democracy make every man forget his ancestors, but it hides his descendants and separates his contemporaries from him . . . .”).
  175. Locke, supra note 144, at 54; see also Paine, supra note 144, at 438–41 (arguing against intergenerational authority).
  176. Mill, supra note 159, at 56–74.
  177. Scruton, supra note 129, at 10; see also Gray, supra note 13, at 80 (conservatives “mostly repudiated the abstract individualism they found in liberal thought and rejected liberal ideas of civil society in favour of conceptions of moral community”).
  178. See Levin, supra note 19, at 101–08 (arguing that Burke’s account of political authority was not based on consent).
  179. Edmund Burke, Reflections on the Revolution in France 52 (J.G.A. Pocock ed., Hackett Publ’g Co. 1987) (1789–1790).
  180. Levin, supra note 19, at 54.
  181. Scruton, supra note 129, at 19–21 (arguing that conservatism rejects social-contract theory).
  182. Burke, supra note 178, at 52; see also Levin, supra note 19, at 101–08 (describing Burke’s objections to the liberal notion of a state of nature); Scruton, supra note 129, at 19–21 (arguing against the state of nature hypothetical).
  183. Thomas Aquinas, De Regno, in St Thomas Aquinas: Political Writings 5, 5–6 (R.W. Dyson ed. & trans., Cambridge Univ. Press 2002) (Bk. I, ch. 1); see also Aristotle, The Politics, in Aristotle: The Politics and the Constitution of Athens 13 (Stephen Everson ed., B. Jowett trans., 1996) (Bk. I.2) (“Hence it is evident that the state is a creation of nature, and that man is by nature a political animal.”); see also Deneen, supra note 15, at 34–35 (describing premodern political thought); Arblaster, supra note 13, at 22–23. For an insightful and somewhat revisionist discussion of Burke’s importance to natural-law thinking, see Matthew D. Wright, A Vindication of Politics: On the Common Good and Human Flourishing 120–58 (2019). But see Huntington, supra note 125, at 459 n.6 (asserting that “any theory of natural law as a set of transcendent and universal moral principles is inherently nonconservative”); see also 1 F.A. Hayek, The Fatal Conceit: The Errors of Socialism 66–88 (W.W. Bartley III ed., Univ. of Chicago Press 1991) (1988).
  184. Levin, supra note 19, at 101–09.
  185. Scruton, supra note 129, at 45–48; 1 G.K. Chesterton, Orthodoxy, in The Collected Works of G.K. Chesterton 251 (David Dooley ed., 1986) (1908) (“We will have the dead at our councils. The ancient Greeks voted by stones; these shall vote by tombstones.”).
  186. Burke, supra note 178, at 84.
  187. Id. at 85.
  188. Locke, supra note 144, at 23–35.
  189. Burke, supra note 178, at 30; see also id. at 27–33; Scruton, supra note 129, at 21–24, 129–31.
  190. Levin, supra note 19, at 214–19.
  191. Locke, supra note 144, at 54–57; see also Levin, supra note 19, at 95–96 (describing this feature of Paine’s theory).
  192. Burke, supra note 178, at 29–31.
  193. Arblaster, supra note 13, at 23.
  194. See Minogue, supra note 139, at 56–59 (stating that there is no necessary connection between liberalism and rationalism (what he calls “libertarianism”), while noting that it is nonetheless a key component of the liberal tradition). Ryan, for instance, implies that the classical liberal tradition associated with Locke takes a more modest view of human reason, see Ryan, supra note 14, at 24–26, and Arblaster points out that liberalism has always contained more- and less-rationalist veins, see Arblaster, supra note 13, at 79–84.
  195. See Minogue, supra note 139, at 27 (drawing this distinction).
  196. See Peter Markie, Rationalism vs. Empiricism, Stan. Encyclopedia of Phil. (July 6, 2017), https://plato.stanford.edu/entries/rationalism-empiricism/#Bib [https://perma.cc/9R8K-YFPE]; see also Adam Adatto Sandel, The Place of Prejudice: A Case for Reasoning Within the World 24–33 (2014) (describing Descartes as a rationalist in the sense that I invoke here).
  197. Oakeshott, supra note 22, at 5–6.
  198. Minogue, supra note 139, at 54–55; Hayek, supra note 182, at 48–52. A similar description of rationalism is found in then-Pope Benedict XVI’s Regensburg Address. See generally Pope Benedict XVI, Faith, Reason, and the University, in A Reason Open to God 7, 7–19 (J. Steven Brown ed., 2013).
  199. Mill, supra note 159, at 23.
  200. Id.
  201. Id. at 58.
  202. Id. (emphasis added).
  203. Id. at 59.
  204. Id. at 14.
  205. Id. at 23, 45; see also Manning, supra note 133, at 53–55.
  206. Ryan, supra note 14, at 267.
  207. Mill, supra note 159, at 70.
  208. Id.; see also Deneen, supra note 15, at 143–48 (describing Mill’s hostility toward custom and tradition).
  209. Minogue, supra note 139, at 54-55 (describing the union of rationalism—what he calls “libertarianism”—and a progressive view of history); Hobhouse, supra note 145, at 49–50, 53.
  210. See John Dewey, The Influence of Darwin on Philosophy, in The Influence of Darwin on Philosophy and Other Essays in Contemporary Thought 1, 9–19 (1910); see also Bradley C. S. Watson, Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence 55–109 (2009); Gray, supra note 13, at 88 (recognizing the connection between Mill’s anthropology and theory of history). But see Ryan, supra note 14, at 318 (arguing that Mill had a less optimistic view of human nature than Dewey).
  211. A very similar dynamic can be seen in Paine’s writings. See Levin, supra note 19, at 150–68 (describing the rationalism of Paine). For a discussion of this view of the relationship between history and progress, see generally Herbert Butterfield, The Whig Interpretation of History (photo. reprt. 1978) (1931).
  212. Arblaster, supra note 13, at 35–37 (describing two strands of liberal tradition regarding human reason, with one being more rationalist); see also Ryan, supra note 14, at 25–26 (same). Hayek, for example, argues that Locke does not subscribe to this strong form of rationalism. See Hayek, supra note 182, at 49. But see Grant, supra note 121, at 616–21, 623 (describing Locke’s rationalism). As noted above, one could argue that Burke, Hayek, and Tocqueville are part of the liberal tradition, in which case they would be examples of liberal theories that reject rationalism.
  213. See Levin, supra note 19, at 150–68 (describing Paine’s rationalism).
  214. Grant, supra note 121, at 616–21, 623 (describing Locke’s rationalism); see also John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the “Two Treatises of Government” 116 (1969) (describing Locke’s move from the state of nature to political society as “rationalistic and abstract”).
  215. See Deneen, supra note 15, at 72–77 (describing the state of nature as being divorced from tradition and custom); Grant, supra note 121, at 610–16 (describing Locke’s view on the influence of custom, especially within a family).
  216. Rawls, supra note 111, at 118–19.
  217. Waldron, supra note 123, at 135; see also id. at 149–50 (explicitly distinguishing liberalism and conservatism on this basis); Deneen, supra note 15, at 25–27 (describing liberalism as a being defined in part by its disregard for culture and tradition).
  218. Arblaster, supra note 13, at 79–84.
  219. Scruton, supra note 129, at 31. See also Minogue, supra note 139, at 53. Hayek articulates a similar idea in his landmark essay on the problem of knowledge. See generally F.A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519 (1945).
  220. Scruton, supra note 129, at 31–32.
  221. Hayek, supra note 182, at 23.
  222. Id.
  223. Burke, supra note 178, at 76.
  224. Id. at 35.
  225. Id. at 33.
  226.  Id. at 31–36; see also Levin, supra note 19, at 128–50. Deneen argues that Burkean conservatism is properly viewed as the antithesis of Millian liberalism. See Deneen, supra note 15, at 143–48.
  227. Levin, supra note 19, at 134.
  228. Minogue, supra note 139, at 30, 35–38.
  229. As we will see, David Strauss’s constitutional theory is individualistic but purports to reject rationalism. See infra Section II.B.
  230. Alicea, supra note 74, at 151–54; see also Rubenfeld, supra note 172, at 45–73. That is why rejecting any form of intergenerational authority necessarily requires rejecting the authority of the American Constitution, no matter how interpreted. See Louis Michael Seidman, On Constitutional Disobedience 11–28 (2012); McConnell, supra note 107, at 1127. For a discussion of the role of rationalism in British constitutional culture, see generally Graham Gee & Grégoire Webber, Rationalism in Public Law, 76 Modern L. Rev. 708 (2013).
  231. McConnell, supra note 107, at 1128.
  232. Rubenfeld, supra note 172, at 43 (“[T]o an extraordinary extent, the Jeffersonian thesis [that the earth belongs to the living] remains the dominant starting point for modern democratic and constitutional theory.”).
  233. Barnett, supra note 118, at 9–10.
  234. Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People 69–73 (2016).
  235. Barnett, supra note 118, at 11.
  236. Id. at 14–25.
  237. Id. at 14–19, 22–25.
  238. Id. at 19–22.
  239. By legitimacy, Barnett means legitimacy as a moral concept. See Fallon, supra note 119, at 1796–1801.
  240. Barnett, supra note 233, at 74. Rawls offered a similar principle of legitimacy. See Rawls, supra note 106, at 217.
  241. Barnett, supra note 118, at 44.
  242. Id.
  243. Id. at 100–13.
  244. Barnett’s justification has undergone refinement over the years and now stretches across three books. My description of his theory is an attempt to synthesize his refinements in his later works with his earlier writings.
  245. Barnett, supra note 118, at 19–22.
  246. Id. at 114 (“[W]e are bound to respect the original meaning of a text, not by the dead hand of the past, but because we today—right here, right now—profess our commitment to this written Constitution.”).
  247. Mill, supra note 159, at 14.
  248. Balkin, supra note 66, at 59–61, 66–67, 76–77, 93, 114. Balkin also discusses “basic law,” but I focus on the “higher law” and “our law” components of his theory because they are the most relevant to my point here.
  249. Id. at 62.
  250. Id. at 63.
  251. Id. at 62–63.
  252. Id. at 62, 78–79.
  253. Id. at 64.
  254. Id. at 29–34, 282, 300–19; see also Solum, supra note 4, at 1282–83; Lund, supra note 74, at 32–36.
  255. Balkin, supra note 66, at 56–57, 63. In this limited sense, Balkin disagrees with Strauss, see id. at 49–58, but both theories are ultimately grounded in individualism.
  256. Id. at 56–57, 64, 281–82; Jack M. Balkin, Constitutional Redemption 54 (2011).
  257. Balkin, supra note 66, at 75 (defining redemptive constitutionalism).
  258. It is important to note, however, that Balkin concedes that constitutional redemption is not guaranteed. Id. at 76; see also Jack M. Balkin, Constitutional Rot, in Can It Happen Here?: Authoritarianism in America 19, 19–35 (Cass R. Sunstein ed., 2018) (asserting that republics are susceptible to constitutional rot and patterns of success are not guaranteed to continue). Thus, while he has a Millian faith in human progress, he does not seem to carry that belief as far as some Progressives, who view social progress as inevitable. See Balkin, supra note 255, at 8.
  259. David A. Strauss, Common Law, Common Ground, and Jefferson’s Principle, 112 Yale L.J. 1717, 1718 (2003).
  260. Strauss, supra note 49, at 928 & n.116; see also Strauss, supra note 1, at 18, 44, 100–01 (questioning why people from a different era should decide fundamental questions about our society today).
  261. Strauss, supra note 258, at 1724.
  262. Indeed, Strauss describes and rejects this conservative view. See Strauss, supra note 49, at 891 (asserting that the past is not “somehow constitutive of one’s own or one’s nation’s ‘identity’”).
  263. Strauss emphasizes that the precedents that his common-law methodology takes into account are not limited to judicial precedents, see id. at 925, but I use the term “judicial precedent” here because it is easier to understand his point when thinking about the judicial context.
  264. See David A. Strauss, The Supreme Court 2014 Term—Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 2, 2–5, 28–52 (2015).
  265. Strauss, supra note 49, at 906–11.
  266. Strauss, supra note 1, at 51–97; Strauss, supra note 49, at 898–906, 916–24.
  267. Strauss, supra note 1, at 12–18.
  268. Id. at 40–42; Strauss, supra note 49, at 891–98.
  269. Strauss, supra note 1, at 100 (emphasis added).
  270. I will discuss Strauss’s epistemological basis for his methodology in more detail below, see infra Subsection II.B.2, but he stresses that his epistemological argument is not based on the authority of the past. See Strauss, supra note 49, at 891–98.
  271. McConnell, supra note 107, at 1130–31. McConnell presents this as a possible response to the dead-hand argument, but he makes clear later in his article that it is, in fact, his own view. See id. at 1133–35, 1140.
  272. Id. at 1134.
  273. Id.
  274. See id. at 1136; see also Alicea, supra note 74, at 152–54 (asserting that recognizing the authority of predecessors’ judgments is essential to preserving the legitimacy of present-day decisions).
  275.  Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619, 650–59 (1994).
  276. Id. at 672–73; see also Rubenfeld, supra note 172, at 62–65 (arguing that the meaning of a society’s commitments evolves alongside that society).
  277. Young, supra note 274, at 688–91. For another Burkean approach to constitutional adjudication, see generally Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029 (1990) (arguing that the common-law model is more descriptively accurate than other methods of constitutional adjudication).
  278. There is a good argument for including natural-law based theories in the anti-individualist camp, since (as noted above) conservatism and the national-law tradition tend to have a similar view of the relationship of the individual to society. Natural-law theories come in both originalist, see generally Lee J. Strang, Originalism’s Promise (2019) (basing originalism on a natural-law account); Jeffrey A. Pojanowski & Kevin C. Walsh, Enduring Originalism, 105 Geo. L.J. 97 (2016) (same), and non-originalist varieties, see generally Adrian Vermeule, Common-Good Constitutionalism: A Model Opinion, Ius & Iustitium (June 17, 2020), https://iusetiustitium.com/common-good-constitutionalism-a-model-opinion/ [https://perma.cc/NUE4-UV3Q] (arguing for a framework for interpreting the U.S. Constitution that centers on its commitment to the general welfare); Adrian Vermeule, Beyond Originalism, Atlantic (Mar. 31, 2020), https://www.theatlantic.com/‌ideas/archive/2020/03/‌common‌-good-constitutionalism/609037/ [https://perma.cc/84PE-L96V] (asserting the legitimacy of interpreting the Constitution in such a manner as to allow the government to promote the common good).
  279. Young, supra note 274, at 622.
  280. See supra notes 246–57 and accompanying text.
  281. Balkin, supra note 66, at 76.
  282. Id. at 81–93, 277–319.
  283. Id. at 76.
  284. Id. at 74.
  285. Id. at 78.
  286. Id. at 28–29, 62.
  287. Mill, supra note 159, at 14. Indeed, Balkin acknowledges that his “focus on progress is characteristically modernist,” with its “assumptions about the proper direction of history, which is a story of potential improvement.” See Balkin, supra note 255, at 49–50; see also id. at 76 (describing redemption as a narrative of progress).
  288. James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms 130 (2015) (“[T]here are unmistakable affinities here between Balkin’s commitment to interpret the Constitution so as to redeem citizens’ faith in its promises and aspirations and Dworkin’s and [Fleming’s] commitment to interpret the Constitution in its best light.”).
  289. Dworkin, supra note 50, at 190–92, 216.
  290. Id. at 176; see also id. at 184 (stating that integrity is flouted whenever a society enacts laws that express incoherent principles of justice).
  291. Id. at 191–92.
  292. Id. at 225.
  293. See id. at 228.
  294. Id. at 228–32; Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 10–12 (1996).
  295. Dworkin, supra note 293, at 2.
  296. See Richard A. Posner, Conceptions of Legal Theory: A Response to Ronald Dworkin, 29 Ariz. St. L.J. 377, 383 (1997) (describing Dworkin as “a universalizing rationalist”).
  297. See Dworkin, supra note 50, at 245.
  298. Id.
  299. See id. at 239.
  300. Id. at 264–65.
  301. See Cass R. Sunstein, Second-Order Perfectionism, 75 Fordham L. Rev. 2867, 2879–81 (2007); Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353, 394–96 (2006); Young, supra note 274, at 690–91 & n.356.
  302. See Fleming, supra note 287, at 102–05 (disclaiming the notion that “fit” entails obligations to the past).
  303. I could perhaps add Barnett to the list of rationalistic theories, since his premises track Locke’s so closely, but Locke’s writings make his rationalism more explicit than Barnett’s do. Moreover, to the extent that pluralist constitutional theories are based on Dworkin’s fit-and-justification approach, see Griffin, supra note 51, at 1756–57; Fallon, supra note 51, at 1233–34, one might consider them rationalist as well, but it is not clear whether all pluralist theorists understand “fit” in the same law-as-integrity way that Dworkin does, with its far-reaching requirements of coherence across the corpus of law.
  304. See Strauss, supra note 1, at 40–42; Strauss, supra note 49, at 891–94; Young, supra note 274, at 642–50. Thomas Merrill could also be added to that list. See Thomas W. Merrill, Bork v. Burke, 19 Harv. J.L. & Pub. Pol’y 509, 519–21 (1996).
  305. See, e.g., Strauss, supra note 1, at 40–44; Merrill, supra note 303, at 518–21; Young, supra note 274, at 667–69 & n.240.
  306. See Bork, supra note 1, at 177 (conceding, in response to Dworkin’s assertion that “the choice of [originalism] is itself a political decision,” that “[i]t certainly is”); see also Dworkin, supra note 50, at 259–60; Ronald Dworkin, A Matter of Principle 54–55, 162–65 (1985).
  307. See Robert H. Bork, Tradition and Morality in Constitutional Law, in A Time to Speak: Selected Writings and Arguments 397, 401–02 (2008).
  308. Dworkin, supra note 50, at 108–12, 190–92.
  309. See, e.g., Balkin, supra note 66, at 59–99; Barnett, supra note 118, at 1–86; Dworkin, supra note 50, at 176-224.
  310. Bork, supra note 1, at 173–74.
  311. See id. at 133–38.
  312. Bork, supra note 306, at 400.
  313. Id. at 401; see also Robert H. Bork, Styles in Constitutional Theory, in A Time to Speak: Selected Writings and Arguments, supra note 306, at 223, 235.
  314. Bork, supra note 312, at 223, 235.
  315. Bork, supra note 1, at 153–55.
  316. Bork, supra note 312, at 223–26.
  317. Bork, supra note 1, at 143–53.
  318. Id. at 155 (“The philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.”).
  319. Bork, supra note 312, at 235.
  320. See Coan, supra note 38, at 876–84.
  321. Coan would call this an example of “hidden disagreements.” See id. at 878­–80.
  322. Balkin expressly links his theory of legitimacy with his thin view of original meaning. See Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev. 815, 828–29.
  323. Balkin, supra note 66, at 59–73.
  324. Mill, supra note 159, at 14.
  325. See generally John O. McGinnis & Michael B. Rappaport, The Abstract Meaning Fallacy, 2012 U. Ill. L. Rev. 737 (arguing that Balkin’s theory erroneously assumes that abstract constitutional provisions are necessarily vague and underdetermined); see also Barnett & Bernick, supra note 57, at 33–36.
  326. Coan would call this an example of “hidden agreement.” Coan, supra note 38, at 877–78.
  327. Vermeule, supra note 119, at 1484.
  328. Id. at 1502–06. Vermeule’s purpose was not to defend originalism, but I believe his arguments at least undercut Strauss’s Burkean arguments against originalism.
  329. 576 U.S. 644 (2015).
  330. See Strauss, supra note 263, at 6–7.
  331. See United States v. Windsor, 570 U.S. 744, 808 (2013) (Alito, J., dissenting).
  332. Indeed, one of the reasons why Bork rejected methodologies like Strauss’s is that they allow judges to rely too much on their individual reason. See Bork, supra note 1, at 234–35.
  333. Fleming, supra note 287, at 125–41.
  334. Id. at 130–32.
  335. Id. at 130.
  336. Id. at 131–32.
  337. See supra Subsection II.B.2.
  338. See supra Subsection II.B.1.
  339. Strauss, supra note 49, at 895–96. Strauss’s conception of tradition is arguably inconsistent with his Burkean anti-rationalism, which could explain why he and Bork disagree so strongly about methodology.
  340. Young, supra note 274, at 650–53, 673, 689.
  341. Id. at 652, 656, 689.
  342. As noted above, Vermeule’s article is a rare example of a justifications-based argument.
  343. Dworkin, supra note 50, at 111.
  344. See, e.g., Balkin, supra note 66, at 59–99; Barnett, supra note 118, at 1–86; Dworkin, supra note 50, at 176–224.
  345. Jacob Gershman, Study Casts Doubt on Kantian Link to Bulgarian Law, Wall St. J. L. Blog (Mar. 31, 2015, 4:20 PM), https://www.wsj.com/articles/BL-LB-50958 [https://perma.cc/4NEK-ZGE4]; Smith, supra note 11, at 227–30.
  346. Bork, supra note 1, at 134.
  347. See Barnett, supra note 118, at 279–80.
  348. See supra Subsection II.B.2; see also Balkin, supra note 66, at 104–08 (expressly linking the debate about expected applications with delegation of authority to future adjudicators); John O. McGinnis & Michael Rappaport, Original Interpretive Principles as the Core of Originalism, 24 Const. Comment. 371, 380–81 (2007) (observing that the relevance of expected applications is linked to how much faith the enactors had in the reasoning of future generations).
  349. Compare Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1749–54 (2020), with 140 S. Ct. at 1766–73 (Alito, J., dissenting). But see Tara Grove, Which Textualism?, 134 Harv. L. Rev. 265, 291–96 (2020) (arguing that Justice Gorsuch’s approach to textualism actually leads to less judicial discretion). Grove identifies Justices Alito and Gorsuch as proposing different kinds of textualism—that is, different variations of the same methodology—and I would suggest that their differences might be based, at least in part, on their different politico-theoretical premises that shape their justifications for textualism.
  350. Bostock, 140 S. Ct. at 1757 (Alito, J., dissenting) (citation omitted). Although Bostock is a statutory interpretation case, the debate between the majority and dissents about expected applications is similar to the debate seen in the constitutional theory literature, see supra note 347, so it strikes me as a good example despite its non-constitutional context.
  351. Cf. Alasdair MacIntyre, After Virtue: A Study in Moral Theory 1–22 (3d ed. 2007) (making an even more radical version of this argument).
  352. See Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 467 (1988).
  353. McConnell, supra note 107, at 1128; see also Christopher J. Peters, What Lies Beneath: Interpretive Methodology, Constitutional Authority, and the Case of Originalism, 2013 BYU L. Rev. 1251, 1276.
  354. See Fallon, supra note 113, at 127, 129 (recognizing this distinction); see also Bork, supra note 1, at 177 (same).
  355. See, e.g., supra notes 298–313 and accompanying text (describing Dworkin’s methodology).
  356. See generally John O. McGinnis & Michael B. Rappaport, The Power of Interpretation: Minimizing the Construction Zone, 96 Notre Dame L. Rev. 919 (2021) (arguing that various tools of interpretation can minimize—if not eliminate—the construction zone).
  357. Peters, supra note 352, at 1273–83.
  358. Whittington, supra note 66, at 111–12; Gray, supra note 13, at 23–24.
  359. Gray, supra note 13, at xiii; see also Ryan, supra note 14, at 23–40; Waldron, supra note 123, at 129–40; Arblaster, supra note 13, at 13.
  360. For a refutation of this position in general, see Fallon, supra note 35, at 545–49.
  361. Solum, supra note 70, at 20–30; Saikrishna B. Prakash, The Misunderstood Relationship Between Originalism and Popular Sovereignty, 31 Harv. J.L. & Pub. Pol’y 485, 486–89 (2008); Gary Lawson, On Reading Recipes . . . and Constitutions, 85 Geo. L.J. 1823, 1825–34 (1997). Michael Stokes Paulsen’s argument is less about linguistic theory than it is about the Constitution’s own prescribed methodology. See Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 858–64 (2009).
  362. See, e.g., Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1289–95 (2015); Cass R. Sunstein, There Is Nothing that Interpretation Just Is, 30 Const. Comment. 193, 194–98 (2015).
  363. See Sachs, supra note 10, at 829–35.
  364. See, e.g., Strauss, supra note 263, at 3–5.
  365. Peters, supra note 352, at 1278–84.
  366. Coan, supra note 38, at 839 (noting that the proposition that “approaches to constitutional decision-making require justification in the form of sound normative foundations” is “widely accepted but not entirely uncontroversial”).
  367. Solum, supra note 2, at 472–73.
  368. Lawson, supra note 360, at 1823–25, 1835–36.
  369. Paulsen, supra note 360, at 919.
  370. Prakash, supra note 360, at 489–91.
  371. Lawson, Paulsen, and Prakash would likely object to describing originalism as a theory of constitutional adjudication, rather than as a theory of constitutional interpretation, because they define originalism as concerned only with how to interpret texts, not with telling judges how to decide cases. See Paulsen, supra note 360, at 918–19; Prakash, supra note 360, at 491; Lawson, supra note 360, at 1823–25. I disagree with that conception of originalism, but even if those three theorists are right, it does not make a difference to my argument that constitutional theory more generally—which is concerned with adjudication—requires normative arguments.
  372. See, e.g., Strauss, supra note 49, at 898–906.
  373. Dworkin, for example, based the need for “fit” on the law-as-integrity principle, which is a normative argument. See Dworkin, supra note 50, at 176–224.
  374. Fallon, supra note 35, at 545–49.
  375. Id. at 540–41, 541 n.13.
  376. Sachs, supra note 10, at 822–38; Baude, supra note 8, at 2363–91.
  377. Pojanowski & Walsh, supra note 277, at 110.
  378. Baude, supra note 8, at 2395.
  379. Solum, supra note 1, at 79–80.

Universal Injunctions: Why Not Follow the Rule?

Over the last several years, a debate has flared up over universal injunctions, court orders that purport to benefit individuals across the nation, including vast numbers of people not party to the litigation from which the injunction issues. Critics on the left decry injunctions seeking to shut down executive action by the Obama Administration, while those on the right decry the mirror image injunctions against programs of the Trump Administration.1.Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 418–19 (2017) (recounting the litigation).Show More To these actions, a third round of injunctions against immigration policies of the Biden Administration can now be added.2.State of Texas v. United States, 21-cv-00003 (S.D. Tex. Feb. 23, 2021). The court enjoined a 100-day moratorium on deportations imposed by the Department of Homeland Security in the Biden Administration.Show More All the while, a solution to these controversies remains hiding in plain sight in Federal Rule of Civil Procedure 23.3.Fed. R. Civ. P. 23.Show More Subdivision (b)(2) of the rule allows class actions when “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Subdivision (b)(1) goes into even greater detail in identifying when class actions should be certified because individual actions would prejudice class members or parties party opposing the class. Both subdivisions speak to the need for injunctions whose benefits go beyond the named parties to the litigation. Why don’t these provisions solve the problem of universal injunctions? If a class can be certified, then the injunction can reach beyond the named parties. If it cannot, then the injunction must be limited to the named parties.

The scholarly commentary on universal injunctions has recognized the relevance of these provisions, particularly Rule 23(b)(2), but then inexplicably pushed them to the margins of analysis. Failure to certify a class has been identified as a precondition of the problem but not as a solution to it. One author has simply excluded certified national classes from the analysis,4.Alan Trammel, Demystifying Nationwide Injunctions, 98 Tex. L. Rev. 67, 77–78 (2019) (noting that due process protections in class action have “little to no bearing on most nationwide injunctions, though, in which the problematic questions concern the rights of nonparties”) (emphasis in original).Show More while another has pronounced the terms of Rule 23 to be “formalistic.”5.Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. Rev. 615, 634 (2017) (“In short, certification under Rule 23(b)(2) is a formalistic gesture that neither limits the scope of a court’s discretion nor guarantees due process for putative class members.”).Show More A sophisticated history of universal injunctions in equity puzzles over the marginalization of the rule, but then moves on to formulate a different set of constraints on universal injunctions.6.Bray, supra note 1, at 469–81.Show More As this article notes, “the need for and value of this class action provision is greatly diminished if plaintiffs can get the same relief in an individual suit that they can in a class action.”7.Id. at 464–65.Show More Still another article delves deeply into the history of equitable remedies but stops abruptly in the middle of the twentieth century, before the current version of Rule 23 began to take shape.8.Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920, 982–93 (2020) (concluding her analysis with decisions from the 1930s and 1940s).Show More If the rule could so easily answer the problem they have posed, perhaps they fear that it would be dismissed as merely procedural, rather than a matter of constitutional dimensions concerning the remedial power of the federal courts. Conversely, those who favor universal injunctions, and who are less concerned with limits upon them, might find the rule too restrictive because it requires certification of a national class to support a universal injunction.

This Essay argues that debates over these apparently binary choices are misconceived. Analysis under Rule 23 does not displace, but instead incorporates, fundamental issues of constitutional law and federal judicial power. So, too, it does not dictate an all-or-nothing answer to the question whether universal injunctions are ever appropriate. The rule frames the appropriate terms in which such questions can be answered, without the addition of tests and factors that would further restrain or enhance the availability of universal injunctions. This Essay advances this argument in three parts. The first analyzes the prominence of constitutional issues in the current debate. The second recounts the history of universal injunctions from Equity Rule 38 to Federal Rule 23. The third responds to concerns that certification of class actions is too “formalistic” and argues that it should be seen instead as a necessary precaution related to the merits of the plaintiffs’ claims and the risk of conflicts of interest within the proposed class. All of these considerations yield the simple conclusions that universal injunctions must be preceded by certification of similarly broad class and that there is no need to address the power of courts to issue this remedy if this prerequisite is not met.

I. The Current Debate and Constitutional Issues

The current controversy over universal injunctions gained national prominence with litigation over initiatives in both the Obama and the Trump Administrations. In Texas v. United States,9.86 F. Supp. 3d 591 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.).Show More the district court issued a preliminary injunction against the Obama policy of not enforcing the immigration laws against “Dreamers,” adults who had immigrated as children without documentation as children.10 10.This program, Deferred Action for Parents of Americans and Lawful Permanent Residents, conferred benefits upon over four million individuals who are currently in the country without documentation, chiefly deferring any attempt to deport them. Texas v. United States,86 F. Supp. 3d at 604.Show More A few years later, universal injunctions were issued against Trump’s executive orders creating the “travel ban,” restricting entry of aliens from identified countries with predominantly Muslim populations.11 11.Trump v. Hawaii, 138 S. Ct. 2392 (2018).Show More These injunctions were reversed by the Supreme Court on the merits. Justice Thomas filed a concurring opinion also disapproving of the universal injunctions as an inappropriate remedy insofar as it extended to nonparties.12 12.Id. at 2425, 2427–29 (Thomas, J., concurring).Show More He expressed doubt that such injunctions conformed to the “case or controversy” requirement of Article III.13 13.Id. at 2425.Show More

He defined the problematic injunctions as those “that prohibit the Executive Branch from applying a law or policy against anyone—often called ‘universal’ or ‘nationwide’ injunctions.”14 14.Id. at 2424–25.Show More These injunctions have the highest profile and therefore generate the most debate, but the same problems arise with respect to any injunction that extends broadly beyond the parties to the litigation. For instance, an injunction that protects enforcement of a state statute against anyone raises the same basic issues.15 15.As occurred, for instance, in Galvan v. Levine, 490 F.2d 1255, 1257 (2d Cir. 1973), which concerned a statewide injunction against denial of unemployment benefits to certain workers from Puerto Rico.Show More As Howard Wasserman has pointed out, the problem is not with the geographic scope of the injunction but with those who can benefit from it.16 16.Howard M. Wasserman, Congress and Universal Injunctions, 2021 Cardozo L. Rev. De Novo 187, 191 (2021).Show More At the opposite extreme, the same problems do not arise with respect to injunctions for the benefit of existing parties that have incidental effects on nonparties. Orders to abate a nuisance are the standard example. A nuisance action by one landowner to enjoin a nearby factory from polluting the air works to benefit of adjoining landowners, but only because full relief to the actual plaintiff requires the factory to reduce pollution to all the landowners.17 17.Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.”).Show More This necessary incidental effect is a far cry from the wholesale extension of an injunction to reach nonparties all across the state or nation.

But is it fundamentally a constitutional problem? Anyone acquainted with the legal doctrine surrounding the “case or controversy” requirement under Article III knows that the definition of its scope and limits has proved elusive. It usually raises more questions than it answers.18 18.A recent case generated multiple opinions in the district court, court of appeals, and the Supreme Court, eventually yielding the conclusion that the plaintiff had sufficiently alleged standing to move beyond the pleading stage of litigation. See Robins v. Spokeo, Inc., 2011 WL 597867 (C.D. Cal. 2011), rev’d, 742 F.3d 409 (9th Cir. 2014), vacated and remanded, 136 S. Ct. 1540 (2016), on remand, 867 F.3d 1108 (9th Cir. 2017), cert. denied, 138 S. Ct. 931 (2018). All this occurred even though Congress had clearly granted the plaintiff the right to sue. 136 S. Ct. at 1545.Show More Yet most of the commentary on universal injunctions has sought a definitive resolution of their validity in constitutional law. Perhaps, given the vicissitudes of the decisions defining a “case or controversy,” this question is better avoided.

The leading article critical of universal injunctions, by Samuel Bray, has given this constitutional issue an historical dimension. He argued, and Justice Thomas agreed, that universal injunctions have become common only since the 1960s.19 19.Bray, supra note 1, at 437–45.Show More According to Bray, universal injunctions might have made sense in England in the eighteenth century, with completely unified courts of equity under the control of a single chancellor, but they were not suited to a federal system of government with judicial power widely distributed among many state and federal judges.20 20.Id. at 424–27.Show More The disjunction between a unitary chancellor and federal judicial system became problematic in the 1960s as courts moved away from traditional rules of standing, according relief primarily to the parties before them, to an emphasis on declaring what the law is, based on “facial” challenges to statutes and other forms of government regulation independent of the facts of a particular case.21 21.Id. at 450–52.Show More

The key decision for Professor Bray is Frothingham v. Mellon,22 22.262 U.S. 447 (1923).Show More usually regarded as a case barring taxpayer standing under Article III, but one heavily dependent on limited equitable remedies.23 23.Bray, supra note 1, at 430–33.Show More As the Court reasoned:

The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.24 24.262 U.S. at 488.Show More

The implicit contrast is with Flast v. Cohen,25 25.392 U.S. 83 (1968).Show More which upheld taxpayer standing to challenge a statute that disbursed funds to religious schools allegedly in violation of the Establishment Clause.26 26.Id. at 83–84.Show More The plaintiffs sought to prevent any expenditure at all under the statute, relief that went far beyond any immediate benefit to the plaintiffs.

The leading response to Bray’s argument, and similar attempts to invoke historical limitations upon equitable remedies, is Mila Sohoni’s exhaustive examination of equity practice through the first half of the 20th century.27 27.See Sohoni, supra note 8, at 943–93.Show More She found a wide range of cases, in both the Supreme Court and the lower federal courts, that awarded or approved of universal injunctions. She took the position that, regardless of the policy questions raised by universal injunctions, the history of equitable remedies demonstrates that it is not a constitutional problem under Article III.28 28.Id. at 993–1008.Show More She, however, cuts off her historical inquiry in the middle of the 20th century.

The policy problems that surround universal injunctions, to the extent they are independent of constitutional problems, revolve around the disproportionate power they allow a single district judge to exercise. A universal injunction that inures to the benefit of nonparties elevates the status of a single judge’s decision to a level comparable to a decision of the Supreme Court. It truncates the development of different lines of authority and forces the case onto the agenda of the Supreme Court. It also creates a risk of inconsistent decisions by different lower courts and invites the plaintiff to go forum shopping for a judge likely to be favorable.29 29.For a survey of these problems, see Bray, supra note 1, at 457–65.Show More By contrast, where parties seek to consolidate multi-district litigation through a change in venue, the choice of the transferee district lies with the panel on multidistrict litigation.30 30.28 U.S.C. § 1407(a), (b).Show More The district judge becomes an overseer of government at every level, regardless of the district or circuit boundaries that circumscribe the precedential effect of decisions by the lower federal courts.31 31.Bray, supra note 1, at 465.Show More

Some argue for universal injunctions based on judicial review of administrative action under the Administrative Procedure Act (APA).32 32.5 U.S.C. § 706; Sohoni, supra note 8, at 991–93.Show More It does create a kind of parity between the actions of the executive branch and the remedy available in the judicial branch. National or regional measures taken by the executive can be met by remedies of equal scope from the judiciary. A gap remains, however, between invalidating administrative action by depriving it of any force in the proceedings before the reviewing court and enjoining reliance upon it in any other proceedings.33 33.John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. L. & Reg. Online Bull., 37 (2020).Show More The APA authorizes courts to “set aside” agency action in the first sense by disregarding it, but it does not authorize injunctions to prevent reliance upon it generally.34 34.Id.Show More More generally, the limitation on federal jurisdiction to “cases and controversies” negates any implied principle of parity between executive and judicial action. Federal judges hand down their decisions only within the confines of a concrete case or controversy.

The preclusive effect of universal injunctions also contravenes the limits on non-mutual issue preclusion against the federal government, an extension of preclusion that the Supreme Court has explicitly prohibited.35 35.United States v. Mendoza, 464 U.S. 154, 158 (1984).Show More Indeed, to the extent the decision represents a binding judgment, it is binding only upon the defendant. The nonparties who benefit from the injunction are bound by an unfavorable decision only if they are in privity with the plaintiff.36 36.Taylor v. Sturgell, 553 U.S. 880, 892–95 (2008).Show More As will be discussed in Part II, a universal injunction revives the practice of “one-way intervention,” rejected in amendments to Federal Rule 23 in 1966.37 37.See infra notes 49–59 and accompanying text.Show More

These problems have elicited ad hoc responses, such as inquiring whether the injunction is necessary to secure equal treatment of nonparties; or limiting the geographical scope of the injunction to a federal judicial district or circuit; or requiring decisions from at least three federal circuits as evidence of settled law; or barring injunctions that resulted from forum shopping for a favorably inclined judge.38 38.Trammel, supra note 4, at 103–13; Sohoni, supra note 8, at 995.Show More Professor Sohoni tentatively suggests reinstating the practice of constituting three-judge district courts, allowing only those courts to issue universal injunctions with direct appeal to the Supreme Court.39 39.Sohoni, supra note 8, at 995.Show More In making this suggestion, she neglects the complications that arose when three-judge district courts were widely available, raising questions about whether the court was properly convened and the effect of summary affirmances by the Supreme Court.40 40.Robert L. Stern & Eugene Gressman, Supreme Court Practice, For Practice in the Supreme Court of the United States 66–67 (4th ed. 1969).Show More This back-to-the-future approach accords with her reliance on past equity practice in issuing universal injunctions for the benefit of nonparties. But as Part II discusses in detail, much has happened since the Federal Rules displaced the Equity Rules in 1938 and altered the procedures that apply in equity to unite with actions at law. While Professor Sohoni finds no ironclad rule that equitable relief must be limited to the parties, she does not examine the question of who can be made parties under modern procedure.

II. From Rules of Equity to Rules of Civil Procedure

Before 1938, federal equity practice supported a range of representative suits. Equity Rule 38 codified this practice:

When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.41 41.Federal Rule of Equity 38, 226 U.S. 649, 659 (1912).Show More

A few of these provisions have survived in Federal Rule 23, such as numerosity—“the class is so numerous that joinder of all members is impracticable”—and commonality—“there are questions of law or fact common to the class.”42 42.Fed. R. Civ. P. 23(a)(1), (2).Show More Yet most of the provisions in the current version of Rule 23 have no antecedent in Equity Rule 38, such as the provision for certification of a class action “[a]t an early practicable time.”43 43.Id. 23 (c)(1)(A).Show More In contrast to the short paragraph of the equity rule, the current version of the rule has eight subsections, most with subdivisions, many of which often are further subdivided.44 44.See Id. 23 (a)–(h).Show More It is also a long way from the equity rule to the complexity of class action practice today.

The process of elaboration began with the drafting and approval of the original Rule 23. This process changed the language of Equity Rule 38 and made it into a separate subsection (a), adding subsection (b) on derivative actions, and subsection (c) on notice.45 45.Fed. R. Civ. P. 23 advisory committee’s note to 1938 amendment, 56–60 (1937).Show More The most controversial change was the addition of three subdivisions to subsection (a), spelling out commonality in terms of “the character of the right sought to be enforced.” As the terminology evolved, class actions could be “true,” where the right is “joint or common”; “hybrid,” where the right is “several” and involves “specific property”; and “spurious,” where the right is “several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”46 46.Zechariah Chafee, Jr., Some Problems of Equity 245–46 (1950).Show More Dividing class actions along these lines attracted criticism for relying on “outworn categories of rights,” not fitting the class actions recognized in current practice, and failing to “correspond to any essential differences in the handling or effect of class suits.”47 47.Id. at 245–47.Show More Zechariah Chafee, a prominent critic of the original Rule 23, would have reduced subsection (a) to a slight variant of Equity Rule 38, jettisoning the three subdivisions entirely.48 48.Id. at 249, 281.Show More

The amendments to Rule 23 took the opposite course, driven by concerns over notice to class members in spurious class actions. The Advisory Committee in 1966 focused on the problems created by “one-way intervention” in those class actions, where the absent class members receive notice only after judgment has been entered.49 49.Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment, 99, 104–06 (1966).Show More Although the committee hesitated to address preclusion, it recognized that it would be difficult to bind class members to a losing judgment in the absence of notice. But if they could still take advantage of a favorable judgment, the party opposing the class was left at a glaring tactical disadvantage. That party could not assert preclusion against absent class members based on a judgment unfavorable to the class, but absent class members could assert preclusion against the opposing party based on a favorable judgment. And instead of eliminating the subdivisions that identified different forms of class actions, the revisers preserved and altered them, moving them to a new subsection (b). That subsection contained the now familiar division of class actions by necessity under (b)(1), in which individual actions would work to the prejudice of the class or the party opposing the class; (b)(2) for class actions for injunctive or declaratory relief for the benefit of the class as a whole; and (b)(3) for class actions for damages and other forms of individual relief.50 50.Id. at 98, 100–04.Show More

To eliminate the problem of one-way intervention in all class actions and to clarify the basis for preclusion by a class action judgment, the revised rule required an early decision on certification and a description of the class in any resulting judgment.51 51.Id. at 104–06. (“Under proposed subdivision (c)(3), one-way intervention is excluded; the action will have been early determined to be a class or nonclass action, and in the former case the judgment, whether or not favorable, will include the class, as above stated.”).Show More The current provisions elaborate upon those adopted in 1966, but they take the same basic form, which is worth quoting at length:

(c) CERTIFICATION ORDER; NOTICE TO CLASS MEMBERS; JUDGMENT; ISSUES CLASSES; SUBCLASSES.

(1) Certification Order.

(A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.

(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g). . . .

(3) Judgment. . . .

(A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and

(B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.52 52.Fed. R. Civ. P. 23(c)(1)(A)–(B), (c)(3)(A)–(B).Show More

These provisions rejected practice under the old rule, which closely resembled the current practice of issuing universal injunctions. An early determination of who was a party to the class action was required, as opposed to the late inclusion of nonparties by one-way intervention or at the remedy stage of the litigation. Those who might benefit from, and be bound by, the class action had to be made known early and had to be specified in the judgment; a general injunction issued at the end of the case would not do.

The crucial provision is in subdivision (c)(1)(A), stating that “the court must determine” whether the case proceeds as a class action “[a]t an early practicable time after a person sues or is sued as a class representative.”53 53.Id. 23(c)(1)(A) (emphasis added).Show More A plaintiff who seeks a universal injunction is suing “as a class representative.” This way of formulating the plaintiff’s role is not some recent invention. Chafee devotes two whole chapters of his book, Some Problems of Equity, to class actions under the heading of “Representative Suits.”54 54.Chafee, supra note 46, at 199–295.Show More He published this book in 1950 and it served as a resource for revisers of Rule 23 in 1966, with prominent citations in their advisory committee notes.55 55.Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment, 98, 102-03, 104, 105, 106 (1966).Show More They adopted his critique of the original rule, but not his proposal to return to a variation on the old equity rule.

Advocates of universal injunctions without class certification might point to the introductory phrase in Rule 23, which seems to contain permissive language that does not require a class action but allows one: “One or more members of a class may sue or be sued as representative parties on behalf of all members only if” the requirements in the rule are met.56 56.Id. 23(a) (emphasis added).Show More But this resort to an isolated phrase neglects the logical structure of the rule, which sets out the necessary and sufficient conditions for maintaining a class action. Replacing “may” with “must” would seemingly command named plaintiffs to commence litigation “as representative parties,” when they might prefer to bring individual actions and seek only individual relief. This conclusion is confirmed by the use of “may” in the introductory phrase in subdivision (b): “A class action may be maintained if Rule 23(a) is satisfied and if” the requirements of one of the subdivisions of (b) is satisfied.57 57.Id. 23(b).Show More

The Supreme Court has made clear that there is nothing permissive about the duty to make a decision on certification imposed by subdivision (c)(1)(A). In East Texas Motor Freight System Inc. v. Rodriguez,58 58.431 U.S. 395, 404–05 (1977).Show More one reason the Court gave for reversing certification of a class action was the plaintiffs’ failure to move for certification prior to trial. Even if the district court had a duty sua sponte to make the certification decision, the plaintiffs’ failure to do so established that they were not adequately representing the class. Transposed to the context of universal injunctions, plaintiffs cannot engage in artful pleading to refuse to seek class certification or to wait until the remedy stage to request a universal injunction. To delay in this manner is equivalent to delaying a request for class certification and it demonstrates that the case should be treated as an individual action with an individualized remedy.

To dispense with certification is equivalent to dispensing with all of the detailed requirements for maintaining a class action under Rule 23. Plaintiffs who seek a universal injunction without certification simply invite the court to ignore those requirements. The current version of the rule, and its predecessor in 1966, could not have been drafted with this option for wholesale evasion in mind. Here again, the Advisory Committee in 1966 deviated from Chafee’s comment on earlier equity practice: “The very identity of interests which made it easy to bring everybody in, also made it somewhat superfluous to do so.”59 59.Chafee, supra note 46, at 201 (discussing the evolution in equity from bills of peace to representative suits).Show More Instead of going back to equity, the Advisory Committee elaborated at length on the provisions for class actions under Rule 23.

Critics of certification as a prerequisite to universal relief might appeal to the prohibition in the Rules Enabling Act that the “rules shall not abridge, enlarge or modify any substantive right.”60 60.28 U.S.C. § 2072(b).Show More If equity authorizes courts to issue universal injunctions, so the argument goes, then it does so as a matter of substantive law and the Federal Rules cannot infringe upon the plaintiffs’ right to obtain such an injunction. An argument along these lines, however, misconceives the relationship between substance and procedure. Certification under Rule 23(b)(2) presupposes “that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”61 61.Fed. R. Civ. P. 23(b)(2).Show More If such equitable relief could not possibly be issued, certification under subdivision (b)(2) has to be denied. The rule no more limits the equitable power than Rule 8(a)(2), requiring “a short and plain statement of the claim showing that the pleader is entitled to relief,”62 62.Id. 8(a)(2).Show More limits the substantive claim asserted by the plaintiff. Both of these provisions, and many others in the Federal Rules, define the conditions under which substantive rights can be asserted in litigation. This is precisely the function of procedural rules: to regulate the process for enforcing substantive rights.63 63.Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407–08 (2010) (opinion of Scalia, J.).Show More

III. The Burdens and Benefits of Certification

If the argument for certifying a class is so compelling, how did courts come to dispense with it? The answer returns to the history of Rule 23 and the prior equity practice of issuing universal injunctions. That practice had to be reconciled with the division of class actions under the original version of Rule 23 into true, hybrid, and spurious.64 64.Chafee, supra note 46, at 246–47.Show More Absent a joint right shared by the entire class or litigation concerning a common question with regard to a particular piece of property, the first two categories would not apply at all. That left most litigation over universal injunctions in the category of spurious class actions.

Yet, certifying a spurious class action did not yield much in the way of benefits. The court still had to work its way through the three-part division of class actions in an overly conceptual framework.65 65.Id.Show More And if the class were certified as spurious, it still permitted one-way intervention by class members. They could take advantage of a judgment favorable to the class and avoid being bound by an unfavorable judgment. The same would be true of a universal injunction in the absence of certification. Nothing much seemed to be gained by working through the complications of the original Rule 23.

It comes as no surprise that courts avoided certification and the precedential force of the prior equity practice retained its strength. The amendments to Rule 23 in 1966 should have altered the balance between the rule and equity practice, but they did not. The momentum of established precedent has carried over in several circuits, imposing a requirement of “necessity” as a preliminary step in deciding whether to certify a class action.66 66.E.g., Galvan v. Levine, 490 F.2d 1255, 1261–62 (2d Cir. 1973); Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978).Show More Only the Seventh Circuit has unequivocally rejected this approach.67 67.Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978).Show More The changes made by the 1966 amendments, as discussed earlier, disapproved of one-way intervention, required early determination of certification, and created a special subdivision for class actions seeking declaratory and injunctive relief. Perhaps the uncertainty surrounding the new version of the rules led litigants and courts to avoid it.68 68.Marvin E. Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39, 39 (1967) (The revised rule “tends to ask more questions than it answers.”).Show More After several decades of practice under the rule, those concerns should have dissipated.

Some critics of required certification pronounce it to be “formalistic,”69 69.Morley, supra note 5, at 634.Show More and most lower federal courts have dispensed with certification when it is not needed.70 70.“[T]he need requirement now seems well-accepted as an appropriate consideration when certifying a Rule 23(b)(2) action.” 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1785.2 n.5 (5th ed. 2005 & Supp. 2021).Show More This label calls attention to the burdens of maintaining a class action, in terms of certifying the class, assuring fairness to class members, selecting class counsel, managing the class action, and approving any settlement.71 71.Fed R. Civ. P. 23(c)–(g).Show More These costs are borne by the parties, their attorneys, and the judge. Yet they yield benefits in terms of defining the class affected by the judgment, determining the scope of the judgment itself, and protecting against inadequate representation and collusive settlements.72 72.Id. 23(a)(4), (c)(3)–(4), (e)(2).Show More These benefits often go to the form that a certification order and a judgment take, but they are not limited to matters of form.

The foundational case on adequacy of representation under the Due Process Clause, Hansberry v. Lee,73 73.311 U.S. 32 (1940).Show More illustrates the need for careful attention to the certification and management of class actions. There, white homeowners tried to bind prospective Black homeowners and those who would sell to them by a judgment upholding a racially restrictive covenant. The interests of these two groups were directly adverse. The first group wanted segregation; the second wanted integration.74 74.Id. at 37–38.Show More Several of the requirements of Rule 23 are directed to the same end of protecting the class. Transposed to recent cases on universal injunctions, adequacy of representation appears to be a significant constraint on judicial power. In Texas v. United States,75 75.86 F. Supp. 3d 591, 604 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.).Show More for instance, it is hard to believe that every state would have followed Texas in opposing the Obama Administration’s immigration policy with respect to “dreamers.” An injunction for the benefit of Texas, or perhaps limited geographically to Texas, has far more plausibility than one that applied nationwide. Just over half the states joined Texas in claiming that the federal immigration policy had a net adverse effect upon them.76 76.Id.at 604.Show More The other half did not want the injunction and a third opposed it,77 77.Brief of the States of Washington et al. as Amici Curiae Supporting Petitioners at 1, United States v. Texas, S. Ct. 2271 (2016) (mem.) (No. 15-674) 2016 WL 922867.Show More, yet it applied in their territory to the same extent as in Texas.

Class actions for injunctions under subdivision 23(b)(2) impose significantly lighter burdens than those, usually for damages, under subdivision 23(b)(3). The prerequisites for certification are simpler and less onerous under subdivision (b)(2), which requires only that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”78 78.Fed. R. Civ. P. 23 (b)(2).Show More By contrast, subdivision (b)(3) requires a detailed inquiry into whether the questions common to the class predominate over individual issues and that a class is superior to other means of adjudication.79 79.Id. 23(b)(3).Show More Likewise the provisions for notice to the class are simply discretionary under subdivision (b)(2), while they are mandatory for all identifiable class members under subdivision (b)(3).80 80.Id. 23(c)(2).Show More For these reasons, plaintiffs usually prefer certification under (b)(2) to certification under (b)(3), as in the well-known case of Wal-Mart Stores, Inc. v. Dukes.81 81.564 U.S. 338, 345 (2011).Show More Given the more lenient standards for certification under (b)(2), there is no need to give plaintiffs the further option of not seeking certification at all.

Some decisions have dispensed with the need for certification for reasons entirely independent of the requirements of Rule 23. They have relied on the agreement by the party opposing the class to be bound by a universal injunction. This concession goes to the remedy stage of the litigation, to the acceptance that any relief awarded to the plaintiff extends to everyone similarly situated. Judge Friendly took this approach in his influential opinion in Galvan v. Levine,82 82.490 F.2d 1255, 1257, 1261 (2d Cir. 1973).Show More a case challenging state limits on unemployment benefits. The state had already withdrawn its policy of denying benefits to workers from Puerto Rico before judgment was entered.83 83.Id. at 1261. For further discussion of this case, see Bray, supra note 1, at 441–43.Show More In that posture of the case, Judge Friendly concluded, certification of a class was “largely a formality, at least for the plaintiffs.”84 84.Galvan, 490 F.2d at 1261.Show More But so was entry of a statewide injunction, since the state no longer contested eligibility for unemployment benefits to individuals in the plaintiffs’ position. By the time the case came before Judge Friendly on appeal, the state had effectively waived any objection to the scope of the injunction, making it difficult to reverse the district court’s judgment on this ground.

Nevertheless, even in cases where the defendant does not contest the scope of the relief requested, certification has its uses. It prevents the party opposing the class from changing positions, for instance, if a new government comes into office. There is no apparent reason to postpone resolution of such issues to the enforcement stage of the case, when they can be resolved at the outset. They would also be easily resolved if the party opposing the class agrees that the case should proceed as a class action. The decision to certify the class and issues of managing the class action become much easier to resolve once the parties agree on the scope of the action—if, indeed, these issues are contested at all.

Requiring certification forces an early decision on who can benefit from the litigation. The requirement of a decision “[a]t an early practicable time,”85 85.Fed. R. Civ. P.23(c)(1)(A).Show More comes long before the remedy stage of litigation, in which the presumption that the scope of the remedy should match the scope of the wrong might exert undue influence.86 86.Bray, supra note 1, at 467–68.Show More Rule 23 creates a more systematic structure for determining the scope of the injunction than the various ad hoc factors that have been proposed as limits: geographical restrictions based on the limits of the federal district or federal circuit; precedent in at least three circuits that supports the injunction; assuring equal treatment of all those who might benefit from the injunction.87 87.See supra note 38, and accompanying text.Show More Other proposals look to expanding the jurisdiction of three-judge district courts to handle universal injunctions, with direct review by the Supreme Court; and to relying upon judicial review under the Administrative Procedure Act, so that the scope of any court order matches the scope of executive action.88 88.See supra notes 32, 39, and accompanying text.Show More

The terms of Rule 23 retain enough flexibility to accommodate these considerations, assuming they are relevant, or if Congress acts to amend the relevant statutes. The rule itself does not prevent certification of class actions on a national, regional, or state-wide scale. The Supreme Court, for instance, upheld a nationwide class action in Califano v. Yamasaki.89 89.442 U.S. 682, 702–03 (1979).Show More Whether other cases can be certified on such a large scale depends on whether the requirements of the rule are met. As the Supreme Court has emphasized, “careful attention to the requirements of Fed. Rule Civ Proc. 23 remains nonetheless indispensable.”90 90.East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395, 405 (1977).Show More The availability of universal injunctions need not be addressed as a question of all or nothing. Indeed, even if a class action is certified, the court still must address the question of appropriate relief, which might, or might not, result in issuance of a broad injunction. As an initial matter, however, the scope of an injunction must be addressed for what it is: a question of joinder of parties.

Conclusion

The historical argument for universal injunction has, paradoxically, a curiously anachronistic quality. A detailed look at the historical record establishes the practice of issuing such injunction as a matter of equity. A detailed look at the Federal Rules of Civil Procedure makes this practice subject to procedural rules on joinder. Perhaps after 1938, but certainly after 1966, Rule 23 changed the procedural landscape surrounding equity practice, no matter how much it previously favored universal injunctions without joinder. It is time to follow the rule.

  1. * Distinguished Professor and Earle K. Shawe Professor of Employment Law, University of Virginia School of Law.

  2. Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 418–19 (2017) (recounting the litigation).

  3. State of Texas v. United States, 21-cv-00003 (S.D. Tex. Feb. 23, 2021). The court enjoined a 100-day moratorium on deportations imposed by the Department of Homeland Security in the Biden Administration.

  4. Fed. R. Civ. P. 23.

  5. Alan Trammel, Demystifying Nationwide Injunctions, 98 Tex. L. Rev. 67, 77–78 (2019) (noting that due process protections in class action have “little to no bearing on most nationwide injunctions, though, in which the problematic questions concern the rights of nonparties”) (emphasis in original).

  6. Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. Rev. 615, 634 (2017) (“In short, certification under Rule 23(b)(2) is a formalistic gesture that neither limits the scope of a court’s discretion nor guarantees due process for putative class members.”).

  7. Bray, supra note 1, at 469–81.

  8. Id. at 464–65.

  9. Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920, 982–93 (2020) (concluding her analysis with decisions from the 1930s and 1940s).

  10. 86 F. Supp. 3d 591 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.).

  11. This program, Deferred Action for Parents of Americans and Lawful Permanent Residents, conferred benefits upon over four million individuals who are currently in the country without documentation, chiefly deferring any attempt to deport them. Texas v. United States, 86 F. Supp. 3d at 604.

  12. Trump v. Hawaii, 138 S. Ct. 2392 (2018).

  13. Id. at 2425, 2427–29 (Thomas, J., concurring).

  14. Id. at 2425.

  15. Id. at 2424–25.

  16. As occurred, for instance, in Galvan v. Levine, 490 F.2d 1255, 1257 (2d Cir. 1973), which concerned a statewide injunction against denial of unemployment benefits to certain workers from Puerto Rico.

  17. Howard M. Wasserman, Congress and Universal Injunctions, 2021 Cardozo L. Rev. De Novo 187, 191 (2021).

  18. Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.”).

  19. A recent case generated multiple opinions in the district court, court of appeals, and the Supreme Court, eventually yielding the conclusion that the plaintiff had sufficiently alleged standing to move beyond the pleading stage of litigation. See Robins v. Spokeo, Inc., 2011 WL 597867 (C.D. Cal. 2011), rev’d, 742 F.3d 409 (9th Cir. 2014), vacated and remanded, 136 S. Ct. 1540 (2016), on remand, 867 F.3d 1108 (9th Cir. 2017), cert. denied, 138 S. Ct. 931 (2018). All this occurred even though Congress had clearly granted the plaintiff the right to sue. 136 S. Ct. at 1545.

  20. Bray, supra note 1, at 437–45.

  21. Id. at 424–27.

  22. Id. at 450–52.

  23. 262 U.S. 447 (1923).

  24. Bray, supra note 1, at 430–33.

  25. 262 U.S. at 488.

  26. 392 U.S. 83 (1968).

  27. Id. at 83–84.

  28. See Sohoni, supra note 8, at 943–93.

  29. Id. at 993–1008.

  30. For a survey of these problems, see Bray, supra note 1, at 457–65.

  31. 28 U.S.C. § 1407(a), (b).

  32. Bray, supra note 1, at 465.

  33. 5 U.S.C. § 706; Sohoni, supra note 8, at 991–93.

  34. John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. L. & Reg. Online Bull., 37 (2020).

  35. Id.

  36. United States v. Mendoza, 464 U.S. 154, 158 (1984).

  37. Taylor v. Sturgell, 553 U.S. 880, 892–95 (2008).

  38. See infra notes 49–59 and accompanying text.

  39. Trammel, supra note 4, at 103–13; Sohoni, supra note 8, at 995.

  40. Sohoni, supra note 8, at 995.

  41. Robert L. Stern & Eugene Gressman, Supreme Court Practice, For Practice in the Supreme Court of the United States 66–67 (4th ed. 1969).

  42. Federal Rule of Equity 38, 226 U.S. 649, 659 (1912).

  43. Fed. R. Civ. P. 23(a)(1), (2).

  44. Id. 23 (c)(1)(A).

  45. See Id. 23 (a)–(h).

  46. Fed. R. Civ. P. 23 advisory committee’s note to 1938 amendment, 56–60 (1937).

  47. Zechariah Chafee, Jr., Some Problems of Equity 245–46 (1950).

  48. Id. at 245–47.

  49. Id. at 249, 281.

  50. Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment, 99, 104–06 (1966).

  51. Id. at 98, 100–04.

  52. Id. at 104–06. (“Under proposed subdivision (c)(3), one-way intervention is excluded; the action will have been early determined to be a class or nonclass action, and in the former case the judgment, whether or not favorable, will include the class, as above stated.”).

  53. Fed. R. Civ. P. 23(c)(1)(A)–(B), (c)(3)(A)–(B).

  54. Id. 23(c)(1)(A) (emphasis added).

  55. Chafee, supra note 46, at 199–295.

  56. Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment, 98, 102-03, 104, 105, 106 (1966).

  57. Id. 23(a) (emphasis added).

  58. Id. 23(b).

  59. 431 U.S. 395, 404–05 (1977).

  60. Chafee, supra note 46, at 201 (discussing the evolution in equity from bills of peace to representative suits).

  61. 28 U.S.C. § 2072(b).

  62. Fed. R. Civ. P. 23(b)(2).

  63. Id. 8(a)(2).

  64. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407–08 (2010) (opinion of Scalia, J.).

  65. Chafee, supra note 46, at 246–47.

  66. Id.

  67. E.g., Galvan v. Levine, 490 F.2d 1255, 1261–62 (2d Cir. 1973); Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978).

  68. Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978).

  69. Marvin E. Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39, 39 (1967) (The revised rule “tends to ask more questions than it answers.”).

  70. Morley, supra note 5, at 634.

  71. “[T]he need requirement now seems well-accepted as an appropriate consideration when certifying a Rule 23(b)(2) action.” 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1785.2 n.5 (5th ed. 2005 & Supp. 2021).

  72. Fed R. Civ. P. 23(c)–(g).

  73. Id. 23(a)(4), (c)(3)–(4), (e)(2).

  74. 311 U.S. 32 (1940).

  75. Id. at 37–38.

  76. 86 F. Supp. 3d 591, 604 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.).

  77. Id. at 604.

  78. Brief of the States of Washington et al. as Amici Curiae Supporting Petitioners at 1, United States v. Texas, S. Ct. 2271 (2016) (mem.) (No. 15-674) 2016 WL 922867.

  79. Fed. R. Civ. P. 23 (b)(2).

  80. Id. 23(b)(3).

  81. Id. 23(c)(2).

  82. 564 U.S. 338, 345 (2011).

  83. 490 F.2d 1255, 1257, 1261 (2d Cir. 1973).

  84. Id. at 1261. For further discussion of this case, see Bray, supra note 1, at 441–43.

  85. Galvan, 490 F.2d at 1261.

  86. Fed. R. Civ. P.

     

    23(c)(1)(A).

  87. Bray, supra note 1, at 467–68.

  88. See supra note 38, and accompanying text.

  89. See supra notes 32, 39, and accompanying text.

  90. 442 U.S. 682, 702–03 (1979).

  91. East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395, 405 (1977).