Originalism and the Supreme Court

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President Trump’s nominee for the Supreme Court is Judge Neil Goresuch, who is said to be an Originalist like Justice Scalia, whom he will replace if confirmed.

Originalism is a theory of judicial interpretation that requires the judge to determine what the Constitution meant at the time of its enactment. An Originalist does not believe that an interpretive gloss may be added to this meaning to make the outcome better fit the times. In the case of current statutory interpretation, an Originalist focuses solely on the plain meaning of the words used in a statute without resorting to what judges or others may think Congress intended the statute to mean.

Originalism is a respectable principle by which to resolve controversy about textual meaning. But it can lead to absurd results. Suppose some crank decided to sue the United States Air Force on the ground that its very existence is unconstitutional. Absurd, right? Not to an Originalist.

Article I, Sec. 8 of the Constitution enumerates the powers granted to Congress. Among them are the power “to raise and support Armies” [12], to “provide and maintain a Navy” [13], and to make rules for governing “the land and naval Forces” [14]. There is not a word about air forces in the Constitution for obvious reasons.

Who could doubt that a judge presented with that suit should dismiss it? Even if the language of the Constitution did not specifically bestow on Congress the power to create and regulate an Air Force, the Founding Fathers would have done so had they been able to conceive of the need for one. And the existing language of the Constitution can be interpreted to give Congress the power. Ah, but this is precisely what Originalists believe should not be done.

In the 1972 case of Laird v. Tatum, Justice Douglas elided the issue by saying that “the Army, Navy, and Air Force are comprehended in the constitutional term ‘armies.’” Really? How can that be? Well, of course, it can’t be if we may only interpret and apply the Constitution as originally meant. But it is more sensible now to broaden the term “armies” beyond what it originally meant. This is an example of holistic interpretation, and why it is the favored approach of most jurists.

Judicial conservatives – Originalists – point out that the Constitution separates powers among the three branches of government and Congress is given the sole power to make laws. If the judicial branch interprets and applies a statute so as to give it a meaning not specified by Congress, aren’t judges making law? And if those judges are liberals, won’t conservatives be unhappy with the substance of the judicially made law? Indeed, and the prime example of this is a woman’s right to an abortion recognized in Roe v. Wade but nowhere mentioned in the Constitution.

Here is the essence of the whole controversy about who sits on the Supreme Court. It is the substance of judicial outcomes that matters, not the interpretive theory they are dressed up in. These outcomes are sometimes politically driven. Judge Goresuch has said that Originalism often leads judges to results they don’t like. Perhaps, but Originalists also sometimes engage in holistic interpretation to reach the result they want, although they tend to construct tortured explanations to deny that they have departed from Originalism. Justice Scalia was famous for this.

It is too early to know what political outcomes Judge Goresuch will favor, but he is unlikely to be worse than Justice Scalia on this point. Judge Goresuch is a careful jurist who does not engage in the bullying and intemperate attacks on those who disagree with him as did Justice Scalia. For that reason alone, he will be an improvement if confirmed.

The West Virginia Workplace Freedom Act

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In early February 2016, West Virginia became the 26th state to adopt a “right to work” law, called the Workplace Freedom Act. The new law does not simply prohibit an employer and a labor union from requiring membership in the union as a condition of employment. It goes further and also forbids requiring an employee to pay any dues or fees to a labor union as a condition of employment. The law was vetoed by Governor Tomblin on February 12, 2016 but that veto was overridden by the Legislature on the same day. The new law was to take effect July 1, 2016.

Outlawing any required fee payment to a union is a significant step for West Virginia to take. It reveals that our Legislature was not so much interested in protecting employees from compulsory membership in an organization they might not support, as it was in financially crippling labor unions. In so doing the Legislature advanced a conservative political agenda of long standing. It is the financial harm created by the new law that led the West Virginia AFL-CIO and a number of individual unions to seek an injunction in Kanawha County Circuit Court. The injunction was granted on August 11, 2016 and the implementation of the law postponed until a full decision can be rendered.

To understand this legal and political struggle, a little background is necessary. Unions can gain the right to represent employees only within a bargaining unit — a plant or department. Being an employee in a bargaining unit is not the same as being a dues-paying member of the union. But once a union becomes the bargaining representative of employees in a unit, it has the right and obligation to bargain for and prosecute grievances for all of them, whether or not they are dues-paying members. This frequently involves large sums for trained staff, arbitrators, meeting halls, offices, libraries, and more.

Over time, union security contract clauses were developed requiring an employee to become a dues-paying member of the union within a certain period after employment. If he refused, the employer was contractually bound to terminate him. But because unions engage in political as well as bargaining activity, federal courts refashioned the deal so that no employee is obligated to pay dues for political activity to which he does not subscribe, but can be required to pay a “fair share fee” to cover the collective bargaining and grievance activity the union must provide him. This was the status of the law in West Virginia until last year.

In 1947, Congress allowed individual states to forbid union security clauses altogether. Almost immediately, states in the south and west passed “right to work” laws. Recently as the strength of Republicans grew in state legislatures, RTW laws passed even in industrialized states like Wisconsin and Michigan. Not wanting to be outdone by their conservative brethren elsewhere, the West Virginia Legislature took up the issue in January 2016. The Legislature commissioned a study by WVU predicting the effect of a RTW law on union membership, job growth, GDP growth and wage growth in West Virginia.

The method used in the WVU study was to compare the group of states with RTW laws to the group without them on these various economic factors for the period 1990 to 2012. To determine whether the RTW laws actually caused any of the observed differences, a complicated regression analysis was used. The WVU study predicted that the rate of union membership in West Virginia would fall by around 20% as a result of the adoption of an RTW law. The study also predicted a long term .4% employment growth benefit and a .5% annual increase in GDP growth.

But the WVU study found no causal relationship between RTW laws and wage growth, even though nearly all other studies like this have found a robust negative effect created by RTW laws on state-wide wage growth. For example, a 2015 study by the Economic Policy Institute found workers in RTW states earned $1,558 less per year than similar workers in non-RTW states. These results did not apply just to employees covered by a union contract but to all employees. “Where unions are strong, compensation increases even for workers not covered by any union contract, as nonunion employers face competitive pressure to match union standards.”

Behaving as if the modest coercion involved in requiring an employee to pay a fair share fee was an outrageous affront to liberty, the Legislature blew past the economic benefit to all workers that exists in non-RTW states. The Workplace Freedom Act states that a person may not be required to “pay any dues fees, assessments or other similar charges . . . of any kind or amount to any labor organization.”

The legal attack by the AFL-CIO on this law is that the state has unconstitutionally deprived unions of their property without just compensation by prohibiting them from charging nonmembers the proper fee for the services unions are required to provide. Ken Hall, President of Teamsters Local 175, testified that members would end up paying an extra $172 in union dues to cover services provided to employees who benefitted from them but refused to pay. These arguments were enough to convince Judge Jennifer Bailey of the Kanawha County Circuit Court to enjoin implementation of the law until a full decision could be made in the next few months.

It is hard to predict how this legal battle will be resolved. Like any human institution, labor unions have had their share of bureaucracy, incompetence and corruption. They have also had their share of success in advancing the interests of working people. Unions improve the economic lives of members and non-members alike. Progressives don’t generally support coercion, but requiring a fair share fee from non-members who benefit from union representation seems appropriate. What is really at stake is not some grand concept of freedom and liberty. It is instead the economic viability of unions and the Republicans in the Legislature know this. Without viable unions, corporate power to set compensation will be virtually unchallenged and working class compensation will continue to stagnate.