LOWER COURT ORIGINALISM.

• Author: Williams, Ryan C.

INTRODUCTION I. UNPACKING "ORIGINALISM": INTERPRETATION and Adjudication II. Originalism in the Lower Courts A. Institutional Differences Between the Supreme Court and Lower Courts B. The Practical Significance of Lower Court Originalism 1. Issues of Judicial First Impression 2. Originalist-Oriented Supreme Court Frameworks 3. Doctrinal Gaps and Discretionary Space 4. Originalist Critique III. Originalism and the Values of Vertical Stare Decisis A. Uniformity B. Accuracy C. Efficiency D. Percolation E. Legitimacy IV. Vertical Stare Decisis and the Values of Originalism A. Popular Sovereignty B. Judicial Constraint C. Desirable Results D. The "Positive Turn" V. Toward a Practice of Lower Court Originalism VI. Beyond Originalism Conclusion INTRODUCTION

"[W]e are all originalists" now. (1) Or so we've been told--repeatedly. (2) But despite such assurances, "originalism" remains one of the most controversial and polarizing terms in contemporary constitutional discourse. (3) Originalist approaches to constitutional decisionmaking have been the focus of an expansive scholarly literature, both supportive and critical, spanning more than four decades. (4) But despite the massive scholarly attention that has been lavished on the originalism debate, there remain some aspects of this debate that have somehow managed to escape close attention.

For the most part, the originalism debate has focused on a set of well-trod questions that have been turned over repeatedly from differing perspectives. One major set of debates focuses on the teleological purposes that originalist methods might serve--the "why?" of originalism (5)--or on critiques of originalism as a theory of interpretation--the "why not?". (6) A second, significant set of debates focuses on the proper object of originalist interpretation and particularly the choice between framers' intent, ratifiers' understandings, and objective public meaning as the appropriate target of originalist concern--originalism as to "what?" (7) Finally, a closely related set of debates has centered on methodological questions regarding the extent to which originalist interpreters can recover the actual original meaning of a constitutional text and the appropriate methods for attempting to do so--the "how?" of originalism. (8)

But despite all the attention devoted to these questions of why, what, and how, an equally important set of questions regarding the identities of the individuals for whom originalist interpretive methods are appropriate--the "who?" of originalism--has remained largely unexplored. (9) With the exception of a handful of works examining whether members of the political branches should embrace originalism's interpretive premises, (10) nearly all originalist scholarship has focused on the role of the judiciary, and the Supreme Court in particular, as the principal expositor of constitutional meaning. (11) Nearly absent from such accounts is any sustained consideration of the possibility that distinctions between different courts--and particularly the distinction between the Supreme Court and hierarchically inferior courts--might matter to the interpretive prescriptions offered by originalist theory. (12)

The virtual invisibility of lower courts in the originalism debate is both unsurprising and unfortunate. Unsurprising insofar as lower courts have historically been ignored by virtually all theories of constitutional interpretation, which have myopically focused on Supreme Court decisionmaking as the only subject worthy of academic attention. (13) And unfortunate given that the overwhelming majority of constitutional litigation in the United States is resolved at the lower court level without any meaningful involvement by the Supreme Court. (14)

The present moment seems a particularly auspicious time to consider the relationship between originalism and lower court decisionmaking. A majority of the Supreme Court's current members have expressed some degree of support for originalism, (15) suggesting that originalism is likely to remain a prominent feature of constitutional jurisprudence for some time to come. And given the previous administration's pronounced commitment to appointing textualist and originalist judges, (16) originalist theories seem likely to find a receptive audience among at least a significant portion of lower court judiciary.

Part I of this Article clarifies some terminology surrounding the use of the term "originalism," particularly the potential distinction between originalism as a theory of constitutional interpretation or legal obligation versus originalism as a theory of adjudication.

Part II examines the role of originalism in lower courts, summarizing some important institutional differences between the Supreme Court and lower courts that bear upon the present inquiry, including disparities in docket size and discretion, institutional resources, advocacy, precedential constraint, and influence over other constitutional decision-makers. Part II also examines the potential practical significance of originalist interpretation for lower courts' decisionmaking, demonstrating that consideration of originalist evidence may be permissible and potentially significant for lower court decisionmaking across a broad range of cases.

Part III considers several important systemic values undergirding the hierarchical structure of the federal judiciary and the doctrine of vertical stare decisis, including uniformity, proficiency, judicial economy, percolation, and legitimacy. As Part III shows, the widespread embrace of originalism by lower court judges could plausibly further certain of these values, such as percolation and legitimacy, while potentially impeding or threatening others, such as uniformity and judicial economy. The precise balance of such comparative benefits and burdens is likely to depend on the particular ways in which originalist reasoning factors into lower courts' decisionmaking and the circumstances in which such decisionmaking occurs.

Part IV shifts the focus from the values undergirding vertical stare decisis toward a consideration of the values most commonly associated with originalism itself. Although originalists have asserted numerous theoretical arguments in support of their preferred theory, Part IV focuses on four of the most prominent--popular sovereignty, judicial constraint, desirable results, and originalism's purported claim to represent "our law" of constitutional interpretation. Although each of these normative justifications might be consistent with the use of originalism by lower courts, none seems to clearly and definitively require a practice of lower court originalism.

Part V seeks to draw some tentative conclusions regarding lower court originalism as an adjudicative practice. In general, the use of originalism by lower court judges is likely to involve higher costs and greater risk of interpretive error than would use of similar methods by the Justices of the Supreme Court. Lower court originalism is also considerably less likely to deliver the sorts of practical benefits typically associated with originalism. These observations suggest that the Supreme Court is institutionally best situated to shoulder the burdens of originalist decisionmaking and should strive to minimize the interpretive burdens on lower courts. Consequently, lower courts should exercise a cautious approach in seeking to integrate originalism into their own decisionmaking, particularly in those situations where the parties have chosen not to raise or brief originalist arguments and where a particular issue seems to fall within the scope of controlling Supreme Court precedent.

Part VII extends the frame of analysis to briefly consider the potential implications for nonoriginalist theories of constitutional interpretation. Many of the institutional concerns that could be implicated by the lower courts' use of originalism may apply with equal force to a variety of nonoriginalist arguments that expect or demand interpreters to look beyond the confines of familiar doctrinal reasoning of the sort that typifies existing lower court practices. To the extent a particular nonoriginalist theory requires consideration of such nontraditional sources--be they foreign legal materials, post-enactment historical practice, the requirements of moral philosophy, or contemporary public opinion--similar questions may arise regarding the competence of lower courts and their ability to further the relevant values at stake.

1. UNPACKING "ORIGINALISM": INTERPRETATION AND ADJUDICATION

   Before proceeding further, it will be useful to explain briefly the particular sense of "originalism" explored in this Article. Originalism is a famously multi-faceted concept that can be used to describe a range of loosely connected interpretive theories sharing a core set of foundational premises. (17) Further complexity is added by the fact that the term "originalism" can be used to describe both a set of postulates about the nature of the Constitution's meaning and authority--originalism as a theory of interpretation--as well as a more specific set of prescriptions about the way in which public officials (paradigmatically judges) should exercise their adjudicative responsibilities--originalism as a theory of adjudication. (18)

   The primary sense of "originalism" this Article examines involves originalism as a theory of adjudication--that is, as a theory about how the postulates of originalist interpretive theory should inform judicial decisionmaking rather than a theory about what makes a claim about constitutional meaning ontologically true or false. In principle at least, one could embrace originalism as a theory of interpretation without believing that the interpretively determined meaning should make any meaningful contribution to the practice of constitutional adjudication. (19) But even if one believes that originalism should guide and constrain judicial practice to...