Fair-Weather Originalists: Be Careful What You Wish For

Sometimes I think history has a wicked sense of humor.  The latest example of history-as-harlequin may be seen by observing the rhetorical, jurisprudential, and logical contortions of people attempting to defend President Trump’s executive orders (EOs) on immigration before, in this latest case, the 4th Circuit.  Most of the people defending Trump’s EOs – EO 13769 and its siblings – are employing the language, tactics, and presuppositions of original meaning, a common approach of conservative / “strict constructionist” jurists and constitutional scholars. To them:  the key question of how to interpret any given text of the Constitution or statutory law is to adhere to the original meaning of the law’s authors as expressed in the original language of the law itself.  In order for the language to accomplish the law’s purpose, and thereby fulfill the author’s / authors’ original meaning, the language, intent, and implementation of the law must be in mutual harmony. This sounds innocuous enough.  Even paint-drying-ly bland. The problem, in the case of EO 13769 as in other instances, is that the language of any text is “always already” embedded in an antecedent context, which must be considered to assess both meaning and intent.  The language of the law is caught in a preceding web of other language which constrains its (the particular law’s) meaning.  In terms of both language and intent, the latter is incomplete and misleading, absent the former.

In the particular case of EO 13769 and associated immigration restrictions, the problems crop up when we discuss how far to fling the discursive net in order to fully account for this defining context.  In particular and in the present case, is it fair to include campaign speeches about immigration Trump made while running for President?  Are Trump’s campaign statements about completely shutting down immigration of Muslims into the United States “until we can figure out what the hell is going on” at all relevant to assessing the constitutionality of these EOs?

The signing of EO 13769

To answer this question, let’s change the context slightly. Suppose that all the aircraft that destroyed the World Trade Center and that damaged the Pentagon – including the one that crashed near Shanksville, PA – had been piloted, not by radical jihadist Muslims bent on the subjugation of the United States to a worldwide Caliphate, but by radical-Calvinist, eschatology-inebriated Presbyterians bent on the extirpation of all traces of Arminian theology and spirituality. (Maybe we can even imagine that our radical Calvinists believed they were predestined to act as they did!)  Trump campaigns on a platform of “bombing the [feces]” out of Presbyterians, publicly advocating a policy of warrantless surveillance of Presbyterian churches, requiring under penalty of law that all Presbyterians register as such on a government data base, demonstrate allegiance to the American constitutional order by renouncing any and all affirmations of the principles enunciated in John Calvin's Institutes of the Christian Religion ("extreme Presbyterian vetting"), and shutting down immigration into the United States from, inter alia, Switzerland and Scotland “until we can figure out what the hell is going on” -- even while carefully noting in the same breath that there are many other sects, even pro-Arminian sects, of Christianity in Switzerland, Scotland, et al., than Calvinist Christianity. Admittedly, this is where my scenario stretches credibility to the breaking point:  it is highly doubtful that Trump knows the difference between an Armani suit and an Arminian doctrine. But work with me for a minute ... .

Anyway, Trump is elected. A few months later, he issues an EO like EO 13769 prohibiting all immigration from, say, Switzerland and Scotland, which just happen to be, doubtless through sheer coincidence, heavily Calvinist-Presbyterian. Now ask yourself the following question:  Does our gedanken-experiment / “Presbyterian-centric” version of EO 13769 discriminate against Presbyterians? Presumably the language of the “Presbyterian-centric” version of the EO would also be carefully engineered so as to refer only to geographic area, with all language pertaining to religion meticulously expunged, and would therefore presumably be consistent with the plenary powers doctrine concerning the President’s power to ban certain types of immigration in a manner consistent with the Constitution and not violative of either of the "religion" clauses of the First Amendment. So what would the problem be? Why would many civil libertarians, carefully crafted language notwithstanding, persist in being antsy about the gedanken-experiment, "Presbyterian-centric" immigration EO?

Order revoking visas pursuant to EO 13769

The answer of course, with the actually-existing EO as with its fictitious counterpart, is that the context of both convincingly suggests otherwise.  Because of this context, previously established by a voluminous amount of assertions and promises, both during the campaign and after, it is fair to infer that the superficial neutrality of the language belies a more sinister, and more counter-constitutional, meaning. In this answer also lies the reply to the Administration's oft-repeated justification that former President Obama likewise published no-less-draconian restrictions on immigration from the nations targeted by EO 13769:  President Obama established a different interpretive context by referring, not to the predominant religion of the targeted nations, but to the fact that a disproportionately large number of terrorists came therefrom. To Mr. Obama, the problem, if you will, was Muslim terrorism -- or, better still, just "terrorism-period" -- not, as with Trump, Muslim terrorism. To express the difference another way, factoring Islam out of consideration, if a disproportionate number of Presbyterian terrorists came from the same seven targeted nations, Mr. Obama's arguments for his immigration restrictions would remain unchanged -- but not Trump's. Mr. Obama was targeting behavior. Trump is targeting religion-as-such. Granted, the language of both EOs is much the same. What is radically different are their respective contexts, as established by Mr. Obama's and Trump's public utterances vis a vis immigration. It is the radical difference between "Call me Ishmael." and "Call me, Ishmael!" and "Call me Ishmael":  the words are the same, but the context is different because of different punctuation and typeface -- except that the Obama-Trump difference is nowhere near as subtle.

Now, granted, candidates often say things as campaign rhetoric that are not intended to be taken at face value as a precis of anticipated decrees or actual legislation.  But when such utterances impinge on matters as fundamental to the Constitution as the "religion" clauses of the First Amendment, candidates who are enamored of off-the-cuff judgments about matters religious would be well-advised to change shirts. Or, better still, their minds. Some matters cut too close to the bone of the Nation to be subject to glib, hip-hop-like rhetorical recklessness. And when such remarks, even on the campaign trail, cross that line, those utterances become fair game for incorporation into the broader interpretive context of judicial review concerning the constitutionality of the candidate-now-office-holder's actual policies. As part of the Fourth Circuit's recent ruling as to the constitutionality of the revised version of EO 13769, Chief Judge Roger Gregory wrote:

Seal of Fourth Circuit Court

Then-candidate Trump's statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as intent, if elected, to ban Muslims from the United States. ... Although the Supreme Court has certainly encouraged deference in our review of immigration matters that implicate national security interests, it has not countenanced judicial abdication, especially where constitutional rights, values, and principles are at stake. [So the inference is justified that the EO's] stated national security interest was provided in bad faith, as a pretext for its religious purpose.  The government has repeatedly asked this court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution's separation of powers. We decline to do so, not only because it is the particular province of the judicial branch to say what the law is [an explicit allusion to Marbury v. Madison, JRC], but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.

Judge Gregory's language drops the bomb squarely down the smokestack and into EO 13769's engine room. We can only hope that the Supreme Court's review will be equally perspicacious.

Finally -- this is just a concluding sidebar -- what I personally find most exquisitely ironic about all the squirming and knickers-tangling twisting regarding Trump's anti-Muslim EOs is that so much of the defensive remonstrances seem to originate from people who are otherwise such staunch and square-jawed advocates of "strict construction" and "originalism" in constitutional interpretation. Not just textualists. But originalists. For originalists, the original meaning of any text -- constitutional or statutory -- is dispositive:  the language means what it means, period.  And "what it means" is inseparable from its -- here's that word again! -- context. Furthermore, you ascertain the context by examining what the authors and other interpreters of the law have said over time. That is precisely what appellate judges -- in the Fourth Circuit, in Hawaii, etc. -- have done. That is presumably what the judges of the Ninth Circuit are doing now.  But now that the interpretive tide is turning against the Administration, all the originalist defenders of the EO are busy as a dog burying a bone in concrete to find reasons to argue, contra their previous professional lives, that the context that defines the original language is not important, or of only negligible importance, after all.  I cannot conjure up a memory of any time in the past when a larger group of constitutional scholars of more impressive attainments have been moved to abandon their once-non-negotiable, supposedly fundamental principles so quickly in the interest of political expediency. Imagine Antonin Scalia morphing into William O. Douglas like that hyper-robot pursuing Arnold Schwarzenegger in the second Terminator movie. Hell, if the American military changed its standards with just half that alacrity, your faithful Resident Skeptic could qualify as a Navy SEAL this afternoon!

So here is my advice to all fair-weather originalists:  be very careful what you wish for!

James R. Cowles

Image credits
Immigration scene ... "Harper's Weekly ... Public domain
Revocation of visas under EO 13769 ... E. Ramotowski ... Public domain
Trump signing EO 13769 ... Photographer unknown ... Public domain
Fourth Circuit seal ... US Government ... Public domain

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