The Rhode Island federal district court had a grand total of six trials in calendar year 2018, according to recently announced statistics. That includes both civil and criminal trials. With 855 new cases filed in the Rhode Island federal district court in 2018, not to mention lots of cases filed in prior years still pending, fewer than 1% of all federal cases proceed to trial. Sadly, for those attorneys who harbor allusions of one day asking, “did you order the code red?” or similar tough questions in a packed courtroom, litigation these days is about pre-trial, mediation, and arbitration — not actual trial. With such low trial numbers, it’s fun to ruminate on what might make a notable trial that would fill the courthouse gallery (in Chief Judge Smith’s current courtroom, that wouldn’t take a lot of people). Perhaps one mode of constitutional interpretation that’s becoming more in vogue these days, originalism, provides a path forward.
Broadly speaking, originalism focuses on what the words in the United States Constitution meant at the time they were voted on and passed. Originalism espouses that the law should be predictable and static and consistently applied, thereby guarding against the creation of new rights by judicial fiat, when those rights should really be created by constitutional amendment.
Under an originalism theory, for the seven original Articles of the Constitution, the pertinent time is what those words meant in 1788-1789ish when the Constitution was ratified. For the amendments to the Constitution, originalism looks to the meaning at the time of the passage of the amendments. And if you really want to bake your noodle, for amendments that are applicable to the States through the Fourteenth Amendment (before the Fourteenth Amendment, the Bill of Rights – the first ten amendments – only applied to the federal government, not to the States), I suppose the applicable meaning would be what the Bill of Rights meant at the time Fourteenth Amendment was ratified in 1868.
Ironically enough, what originalism actually means is itself subject to scholarly debate. My own view is that originalism has two subbranches. Branch #1 looks to the Framers’ actual intent for the words in the Constitution. Under this branch, for example, to interpret the meaning of the word “commerce” in the Commerce Clause, the key question would be what the Framers intended when they used the word “commerce.” A court attempting to answer this question might look to the Federalist Papers in a quest to divine intent. The other subbranch, branch #2, takes a more contractual approach and does not look to the Framers’ subjective intentions. Instead, the operative inquiry is the “public meaning” of the word or phrase in question. This is akin to common-law contractual interpretation in which courts interpret contract terms by the objective meaning, instead of the secret subjective meaning of one of the parties. Returning to the Commerce Clause, a court using this Branch #2 “public meaning” approach might look to a dictionary definition of “commerce” in publication around the time of the Constitution.
One recent example of the rising primacy of originalism is the United States Supreme Court’s decision earlier this month in Franchise Tax Board v. Hyatt. In that case, the majority opinion held that “at the time of the founding, it was well settled that States were immune under both the common law and the law of nations.” As evidence for this point, the majority opinion cites mostly to a few law review articles and some original sources around the time of the founding, including the Federalist Papers. With the new wave of judicial appointments over the last couple years, originalism is starting to pop up in all sorts decisions. For example, in Whole Woman’s Health v. Smith, best known perhaps for Appellate Judge James Ho’s description of what he called the “moral tragedy of abortion,” Judge Ho also states that “nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.”
The granddaddy of all originalism cases is District of Columbia v. Heller, in which the Supreme Court decided 5 to 4 that the Second Amendment protects an individual’s right to possess a firearm for self-defense inside the home. In Heller, the majority and minority opinions went tete-a-tete over the meaning of “militia” and the original understanding of the Second Amendment at the time of its passage. In the majority opinion, Justice Scalia cites things like treatises on 18th century interpretation, documents from ratification debates, founding era documents and laws and constitutions from the states, dictionaries from the 1770s, some law reviews, a couple books about the Second Amendment, and then goes into a lengthy analysis of other historical sources after passage of the Second Amendment, and adds some case law. In the minority opinion, Justice Stevens goes on a lengthy exposition of the ratification debates surrounding the Second Amendment and cites many sources from around the time of ratification. The minority opinion also accuses the majority opinion of “fail[ing] to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; [and] postenactment commentary.”
Whatever else can be said about District of Columbia v. Heller – it begs an important question about evidence and judicial decision making. In 157 pages of judicial opinion writing, the Supreme Court Justices go back and forth in Heller citing evidence from over 200 years ago on the meaning “militia” and the other words in the Second Amendment. If originalism is interpreted as the “public meaning” of a word in the Constitution at the time of the founding, or the intent of the Framers, why shouldn’t a jury decide these questions?
Taken to its logical conclusion, the doctrine of originalism asks factual questions, not legal questions. It is a factual question, for example, what the word “militia” or the words “bear arms” in the Second Amendment meant 200 years ago. Anyone who reads all 157 pages of District of Columbia v. Heller is struck by the sheer mountains of evidence that the majority and minority opinions marshal for their respective positions. Was all this evidence decided as a matter of fact in the District Court before the case made its way to the Supreme Court? It doesn’t look like it. The District Court opinion, Parker v. District of Columbia, 311 F. Supp. 2d 103, 103 (D.D.C. 2004), is five pages long and decided as a motion to dismiss — a stage of the case before a court would even look to actual evidence. In essence, it appears that the majority and minority opinions in the Heller Supreme Court opinion picked whatever evidence the parties gave them in briefing, did some of their own research, and engaged in their own fact finding without any sort of an evidentiary hearing. Heller is a judicial notice case writ large.
Because the precise meaning of a word over 200 years ago — which in many cases will have some ambiguity to it — is best construed as a question of fact, it seems to me that a better and more faithful approach to originalism would require evidentiary hearings on the meaning of specific words. Juries are just as well-equipped to make these findings as judges. In contract law cases, when a term is ambiguous, the meaning of the term is treated as a question of fact, and juries are called upon regularly to decide the meaning of ambiguous terms by listening to testimony and weighing evidence. There’s no reason the same approach can’t apply to deciding the meaning of words under an originalism approach.
Legally, there are several barriers to delegating to a jury the precise meaning of a word over 200 years ago. The biggest of these is the distinction between law and equity, and the basic rule that jury trials are only appropriate in legal (i.e. money damages) cases as opposed to equitable cases, such as suits for injunctions. Generally, cases involving constitutional interpretation — at least when constitutional terms are applied to a specific set of circumstances for the first time — involve equitable relief, not money damages. Supreme Court cases such as Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990) (holding that when a case has equitable and legal claims, let the jury decide the legal claims first), and City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) (allowing a jury trial in a regulatory takings case), also lay out complicated rules for when a litigant is entitled to a jury trial when suits combine legal and equitable forms of relief, or involve novel rights. Judges, not juries, are also generally considered the arbiters of statutory interpretation. One potential carve out to barriers to a jury trial could involve suits against municipalities under the constitution under 42 U.S.C. 1983 — at least in some circumstances as laid out in City of Monterey. Since municipalities are not protected by qualified immunity, theoretically a suit could proceed against a municipality with a jury interpreting a constitutional provision as a matter of fact, since Section 1983 cases are analogized to tort claims where jury trials are available.
Ironically, the constitutional right to a jury trial in civil cases, enshrined in the Seventh Amendment, is itself not incorporated to apply to the States through the Due Process Clause of the Fourteenth Amendment. In other words, while the Due Process Clause requires the States to follow other parts of the Bill of Rights like the First, Second, and Fourth Amendments, it does not require the States to guarantee jury trials in civil cases that involve legal claims. (So — looking to the original public meaning of term “suits at common law” in the Seventh Amendment – let’s have a jury trial on whether the Seventh Amendment requires jury trials in civil cases!).
Regardless of the constitutional right to a jury trial, putting the original meaning of constitutional terms in the hands of a jury would have the practical benefit of muting calls that judges are creating new rights through constitutional interpretation. This approach to originalism would also reinvigorate the jury trial and re-emphasize the jury as the best arbiter of fact. The text of the Second Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” At the time of the passage of the Second Amendment, did the original public meaning of “bear Arms” include such things as fully-automatic rifles, fake rifles, switchblades, grenade launchers, tanks, or maybe nuclear weapons? I don’t know the answer to these questions, but seeing as the Federal District Court in Rhode Island had only six trials last year, if the court is looking for a seventh, it sure would make for a heck of an interesting jury trial.