October 26, 2012

Argument preview: The retroactive application of Padilla v. Kentucky

Cross-posted from SCOTUSblog.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act.  Through a variety of changes to then-existing law, the Act took steps to facilitate the deportation of non-citizens convicted of crimes.

Aggressively enforcing the reforms, the executive branch has removed record numbers of noncitizens – four hundred thousand per year in the last two years.  As a result, the Supreme Court has addressed a growing number of removal cases based on criminal convictions.  Earlier this month, for example, the Court heard oral arguments  in Moncrieffe v. Holder, in which the government removed a non-citizen based on his criminal conviction for possessing a small amount of marijuana.  In addition, the growing intersection of immigration and criminal law — dubbed “crimmigration law” — has spawned a growing genre of legal scholarship.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in Moncrieffe.]

In Padilla v. Kentucky (2010), the Court held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on an attorney’s failure to inform a criminal defendant of the risk of deportation resulting from a plea agreement and criminal conviction.  In so holding, the Court recognized that “deportation is an integral part – indeed, sometimes the most important part – of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”  Next week, in Chaidez v. United States, the Court will hear oral argument on whether Padilla applies retroactively, so that non-citizens who were convicted before its 2010 decision in that case can benefit from it as well.  [Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to Chaidez, but the author of this post is not affiliated with the firm.]

The case

In 1971, petitioner Roselva Chaidez, a citizen of Mexico, came to the United States; she became a lawful permanent resident in 1977.  In 2003, Chaidez, on advice of counsel, pled guilty to mail fraud in connection with an insurance scheme in which she received $1200; the entire scheme netted about $26,000.   Chaidez was sentenced to four years of probation.  Now fifty-five years old, she lives in Chicago with family members who are U.S. citizens.

Under the U.S. immigration laws, a fraud conviction involving a loss in excess of $10,000 constitutes an “aggravated felony” for which a non-citizen can be deported.  In 2009, after Chaidez unsuccessfully filed a petition for naturalization (and subsequently disclosed her criminal conviction in the interview), the U.S. government initiated removal proceedings based on her conviction.

Chaidez filed a motion for a writ of coram nobis to set aside the conviction, claiming that her attorney failed to inform her that a guilty plea could result in removal from the United States.  She maintains that, if her attorney had informed her of the possible immigration consequences of the plea bargain, she would not have accepted it.  While Chaidez’s motion was pending, the Court issued its decision in Padilla.

In Teague v. Lane (1989), the Court held that a new procedural rule announced by a court could not be retroactively applied in a collateral attack on a criminal conviction.  Applying Teague to Chaidez’s case, the district court vacated her conviction, holding that Padilla applied the well-established rule – and thus not a new rule — that ineffective assistance of counsel violated the right to counsel under the Sixth Amendment.

A divided panel of the Seventh Circuit reversed.  The court held that because Padilla in fact announced a new constitutional rule, it could not, under Teague, apply retroactively to Chaidez’s conviction.  In its view, Padilla would be considered an established rule only if precedent “compelled the result” – which, as demonstrated by the fact that the Justices on the Court expressed such an “array of views,” it did not.

The arguments

The arguments by the parties in the merits briefs are fairly predictable.  Chaidez contends that Padilla did not announce a new rule but rather was simply a fact-specific application of the well-established rule that, under the Sixth Amendment, an attorney in a criminal case must provide reasonably effective assistance.   Chaidez’s lawyer thus had a duty to advise her of the immigration consequences of her criminal conviction.

In contrast, the government argues that the Seventh Circuit was correct that Padilla announced a new rule and does not apply retroactively to collaterally challenge Chaidez’s conviction.  Before Padilla, the applicable precedent did not require counsel to provide advice on matters that were not directly part of the criminal case.


As the Court has recognized, deportation is a harsh measure.  In Padilla, the Court acknowledged that that the possible removal due to a criminal conviction may be more important to a non-citizen than the punishment.  In so doing, the Court held that an attorney who fails to advise a client of the immigration consequences of a plea may be guilty of ineffective assistance of counsel under the Sixth Amendment.   It further noted that roughly ninety-five percent of the criminal convictions today are obtained through plea bargains similar to Chaidez’s.  Knowledge of possible deportation as a consequence of a plea is a critical ingredient to a non-citizen’s informed judgment about accepting the plea.

In Chaidez, the Court will decide the full reach of its decision in Padilla.  That decision in turn will have an impact on a great many non-citizens with criminal convictions before 2010 – many of whom in these times of increased immigration enforcement are frequently caught up in the removal machinery of the U.S. government.

From an immigration standpoint, the government is focusing resources on the detection, arrest, and removal of immigrants convicted of crimes, including crimes that many generally would not view as sufficiently serious to subject a person who has lived decades in the United States, like Chaidez, to removal from the United States.   The Obama administration and future administrations will likely continue to focus for the foreseeable future on removing “criminal aliens” – a politically unpopular group — from the United States.

In these times, defense counsel unquestionably should know that noncitizens are subject to serious immigration consequences, including possible removal, for almost any criminal conviction.  The 1996 reforms made the immigration consequences of many criminal convictions all the more onerous – and well-known among defense counsel.  Indeed, many treatises and practice guides as early as the 1980s observed that defendants could not knowledgeably decide whether to accept a plea bargain without weighing the possible deportation consequences of a criminal conviction.  In that light, it was patently unreasonable for Chaidez’s counsel in 2003 to fail to advise her of possible removal due to the plea and conviction.

October 26, 2012

An Update on the National Popular Vote Movement and Other Election Reform As the 2012 Presidential Election Looms

Cross-posted from Justia's Verdict.

With the Obama-Romney election nearly upon us, my column today updates readers on the status of various presidential election reform efforts (a topic about which I have written columns for this site in the past).

A number of initiatives that were undertaken over the last year fell apart.  The online third party effort, Americans Elect-a movement that strove to put a "nonpartisan" (or in reality, a bi-partisan) presidential/vice-presidential candidate slate, determined by citizens around the country who participate in an "online convention," on the ballot in all 50 states-fizzled.  So too did partisan efforts in Pennsylvania and Nebraska to change the way in which those two states will divvy up their blocks of electors in the so-called electoral college in the 2012 election.  And the coordinated National Popular Vote (NPV) movement about which I have written a great deal, both in academic literature and in online columns, has not picked up any new state participants since California got the plan nearly halfway to national success by adopting NPV legislation over a year ago.  (For those who are unfamiliar with the basic structure of the NPV plan, this column from 2011 should provide sufficient background.)

It is not surprising that very little election reform-or any other significant government business-gets accomplished in an election year; election years are known for legislative gridlock generally, and election reform often raises concerns about partisanship and election-result manipulation (as is true, for example, with some of state voter-ID laws that have been adopted in the last few years).

The NPV and the 2012 Election: The Election Will Surely Feature Many Ignored States, and Could Result in a Possible Inversion of 2000

But the 2012 presidential election cycle is far from irrelevant to the future of election reform.  Take the National Popular Vote movement.  The plan has two big selling points:  One is the idea that everyone's vote throughout the country should, as a formal matter, be counted equally; the other is that the way the electoral college currently operates (largely because of winner-take-all rules in most states) tends to make only "swing" or "battleground" states relevant to the two major candidates.  As a result, all the other states-and their particular needs-get very little attention during the campaign season.

This is a powerful critique of the current system in any election year, and it is especially illustrated by this year's election dynamics.  There are only roughly nine out of the 50 states where Romney and Obama have any real reason to spend time and make promises, leaving the rest of us more or less neglected by the person who will become President.  If this pattern (of the candidates' focusing on a small and/or shrinking number of battleground states) persists (and I should acknowledge that some think it might not, depending on demographics), then the incentive of the neglected states to try to tweak the present system should grow.

Perhaps even more important for the chances that the NPV coordinated-state movement will succeed is the specter that Governor Romney will, in 2012, win the national popular vote but lose in the electoral college.  A number of political analysts and pollsters say that this is quite possible (in the same way that, in 2000, George Bush (R) became President even though Al Gore (D) won more votes nationwide.)

Why might a Romney popular-vote-win/electoral-college-loss affect NPV's prospects?  Because up until now, all of the states that have adopted the NPV bill have been Blue states-states that are generally assumed to lean towards the Democratic, rather than the Republican, candidate for President.  And unless a Red state joins soon, it will become increasingly hard to debunk the (wrongheaded) fear that Red state folks have that the National Popular Vote bill is a Democratic scheme, rather than a democratic idea.

The reality is that, during this window in American history at least, a move towards a national popular vote would not benefit or hurt either party in particular.  It is true that a Democrat was stung by the conventional electoral college operation in 2000, but even in that year, things could just as easily have been the other way around (and indeed many analysts predicted before that election that they would be the other way around, with Bush winning the popular vote but losing the presidency.) And in 2004, President Bush won reelection by beating Democrat John Kerry by about 3 million votes nationwide, and yet if Kerry had won just over 60,000 more votes in Ohio away from Bush, Kerry would have prevailed under the current electoral college system.

So there is nothing inherently partisan about the modern national popular vote movement. Given the competitiveness of the two parties nationwide, and given the reality that if a national popular vote system were in place, both campaigns would build their strategies around it, there is no reason to expect that adoption of the NPV system would, if put into effect, benefit one party over the other.

But while some prominent Republicans (like Fred Thompson, a 2008 Republican Presidential candidate and former U.S. Senator; former Republican Governor Jim Edgar of Illinois; and the Republican-controlled state Senate in New York, all of whom support the NPV idea) understand all this, the compelling theoretical case that the electoral college could bite the Republican presidential candidate, just as it bit a Democrat in 2000 would be immensely buttressed by a real-world modern data point. For instance, if Romney were to suffer the same fate in 2012 that Gore did in 2000, that might be sufficient to put some Red states into the NPV column.

The Question of the Need for Congressional Approval of NPV State Coordination

If NPV does attract new states in 2013 and beyond, the question of whether Congressional approval is required before the plan goes into effect will take on greater salience.

The Constitution does require that Congress approve some interstate agreements/compacts before they go into effect, but the Court's case law is very underdeveloped in this area.  The most comprehensive analysis came in the late 1970s, in a case in which the Court held that Congressional approval was not required with respect to a multistate tax commission that made recommendations that various states could then consider adopting.  The Court there said that the two key factors in determining whether an agreement between two or more states requires Congressional approval are whether the agreement threatens (1) the supremacy of the federal government, or (2) the sovereignty of non-signatory states.  Because the tax commission at issue in the case before the Court did neither-and essentially allowed each state to accomplish no more than it could absent the agreement-no approval by Congress was required.

It could be argued, on one hand, that the coordinated NPV plan should not be subject to the Congressional approval requirement; under Article II of the Constitution, each state is free to allocate its electors however it chooses, and so states' making their allocations contingent on what other states are doing may not be objectionable, especially since the signatory states are not trying to exclude or in any way discriminate against the non-signatory states.  (It may be important in this regard that all states are welcome to join the NPV coordination, and that the national popular vote tally is based on voter preferences in all states, not just the ones that have embraced the plan.)

On the other hand, the NPV plan that states have been adopting does give signatory states the right to do something that they could not do absent the plan: enforce a right to prevent other signatory states from changing their allocation methods late in the election cycle.

Moreover, to the extent that the NPV plan is sold-and viewed-not just as a way to make everyone's vote in the nation equal (my preferred rationale), but also to enhance the attention paid to currently neglected states that are urged to join the plan for that selfish reason, the plan may begin to look like a campaign-attention power-grab by signatory states vis-à-vis the other, non-signatory states, implicating the Supreme Court's state concern about interstate federalism.

But the Supreme Court has not spoken much on these issues in over three decades, and its most recent important rulings were handed down by a Court that included none of the members of the current Court.  So the question whether the Court would find Congressional approval required for coordinated state action here is somewhat open.

Might One or More States Move to NPV Unilaterally?

Meanwhile, there is, at least in theory, the possibility that a state could consider allocating its electors to the national popular vote winner, rather than to the candidate who won the most votes in that state, regardless of whether other states are doing so.

I have speculated on this possibility in an earlier column, in which I asked whether a swing state (like Ohio) might be convinced to act selflessly in order to effectively bring about NPV.  At a recent election-reform conference I attended at M.I.T., I learned of some work that is being done by voting-method luminary Steve Brams (of N.Y.U.) and one of his colleagues, that might suggest that some states could have selfish reasons to adopt an NPV approach unilaterally, insofar as a move by a presently ignored state to allocate its electors to the national vote winner might increase that state's own campaign clout.  I hope to explore that possibility in greater detail in a future column, after next month's election.

October 18, 2012

Shenandoah Screening at UC Davis School of Law

On Tuesday evening, UC Davis School of Law hosted the West Coast premiere of Shenandoah, a documentary about a coal mining town with a rich immigrant heritage, which was dramatically challenged when four of the town’s white, star football players were charged in the beating death of an Mexican immigrant named Luis Ramirez. In it, Pulitzer Prize-winning photographer David Turnley creates a deeply felt portrait of a working class community and the American Dream on trial.

Turnley and Billy Peterson, Executive Producer and CEO of Epic Match Media, were in attendance for the showing of the film. Carlos Gonzalez Gutierrez, the Consul General of Mexico in Sacramento, was also a guest.

Executive Producer Peterson, Director Turnley, Ambassador Gonzalez, and me

Ambassador Gonzalez addresses the audience before the film.

Along with Turnley and Peterson, immigration law expert (and former ImmigrationProf blogger) Professor Leticia Saucedo participated in a fascinating discussion and analysis of the film after the showing.

The film, in my estimation, is much more than about the tragic death of Luis Ramirez, although we learn many insights about that story. The film demonstrates the nation’s need to confront and address racism in modern American social life as well as the often harsh impacts that the changing national and world economies on small-town America.

Shenandoah also reveals much about the tough times in which we live in terms of immigration. Harsh talk of “illegal aliens”, “anchor babies”, and worse create the kind of environment in which a hate crime like the killing of Luis Ramirez by a group of all-American boys can occur. As has been reported, hate crimes directed at Latinos have been at high levels for a number of years.  It does not seem coincidental that the frequently coarse debate over immigration, and the failure of Congress to pass comprehensive immigration reform, has occurred over the same time period of high levels of hate crimes against Latinos.  The film this made me consider just how important moving forward on immigration reform was.

Shenandoah also causes one to think about whether the hyper-aggressiveness of beloved high school football in a small town contributed to the violence that resulted in a tragic death. A somewhat surprising feature of the film was the personal growth of Brian Scully, one of the perpetrators of the crime, who admitted his role in the horrible incident, later testified against other defendants, and grew personally from his experience (and moved away from high school football).

Last but not least, the U.S. Department of Justice under President Obama brought federal civil rights charges against the wrongdoers after a jury in state court found the defendants guilty of only simple assault, the least serious criminal charge. That intervention thus brought some modicum of justice to those who participated in the beating death of Luis Ramirez. The Obama administration has demonstrated more of an interest in these kinds of prosecutions than the Bush administration.

If you get a chance to see Shenandoah, I highly recommend it.

October 12, 2012

Rose Villazor Joins ImmigrationProf Blog

As many of you know, I am an editor at ImmigrationProf Blog.

We are very pleased to welcome Professor Rose Cuison Villazor to the ImmigrationProf blog as an editor.   

An accomplished and influential immigration and civil rights scholar, Rose joined the UC Davis faculty in 2012 from the Maurice A. Deane Law School at Hofstra University. She has also taught at Columbia Law School and the Southern Methodist University Dedman School of Law.

Professor Villazor teaches and writes in the areas of property law, immigration law, race, and citizenship. Her scholarship includes, “The Other Loving: Uncovering the Federal Regulation of Interracial Marriages,” in the New York University Law Review (2011), “Rediscovering Oyama v. California: At the Intersection of Property, Race and Citizenship,” in the Washington University Law Review (2010), and "Blood Quantum Land Laws: The Race versus Political Identity Dilemma," in the California Law Review (2008). She has also been published in the Southern California Law Review, UC Davis Law Review and Southern Methodist University Law Review.

Rose is co-editor of a book titled Loving v. Virginia in a `Post-Racial' World: Rethinking Race, Sex, and Marriage published by Cambridge University Press.

Welcome to ImmigrationProf Blog, Rose!  We look forward to your energy, enthusiasm, and intellect.

October 12, 2012

Was Justice Scalia Right That Many Contentious Constitutional Issues Are “Easy” to Resolve?

Entry cross-posted from Justia's Verdict.

Justice Scalia made news last week for some remarks he offered concerning “easy” constitutional disputes.  In particular, he suggested that challenges to the constitutionality of the death penalty, laws restricting abortions, and limits on the rights of gays and lesbians to engage in homosexual activity should be easy to reject because they fail the test of textualism/originalism, the mode of constitutional interpretation that he has said he prefers.  In the space below, I analyze this mode, and discuss whether its use in the way Justice Scalia favors is, in reality, so easy.

The Essence of Originalism and Justice Scalia’s Application of It to Current Hot-Button Issues

Originalism is a term used, in modern times, to describe a particular approach to constitutional (and sometimes statutory) interpretation that seeks to understand and apply the text of the document as “intelligent and informed people of the time” of the document’s enactment would have. Justice Scalia has explained that originalism seeks to construe text “reasonably, to contain all that it fairly means.”

Under originalism, the meaning that counts is “the original meaning of the text” –”how the text of the Constitution was originally understood” by interpreters of the day. What the original draftsmen (that is, the people who actually wrote the words) subjectively intended might be evidence of what the words meant at the time, but any divergence between the drafters’ subjective intentions and the most likely understandings of those words at the time of enactment would be resolved in favor of the latter.

In any event, according to Justice Scalia, the “Great Divide with regard to constitutional interpretation [today] is not that between Framers’ intent and [original] objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning.” Originalists reject the notion of “current meaning” and a “Living Constitution” primarily because, they argue, it vests too much discretion in modern judges and Justices to do whatever they please when they interpret the Constitution.

In a recent book event at the American Enterprise Institute, Justice Scalia reportedly said the following in applying his methodology to some legal disputes that have generated controversy and division on the Court over the past few decades:

The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody [at the time of the Fourteenth Amendment, whose due process clause has been used by the Court to recognize abortion rights] ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years [including at the time of the Fourteenth Amendment], it was criminal in every state.

Are Things Really So Easy?  Cases That Scalian Originalism Might Call in Question

Is Justice Scalia correct that his approach would make seemingly vexing constitutional disputes like these “easy”?  For starters, I’m not completely sure that applying Scalia’s test to these realms would always provide clear answers over which historians would not argue; the task of discerning what words meant to intelligent and informed people of a bygone time is frequently far from simple.  But even if Justice Scalia could convince me that his approach were easy in that it generates clear answers to the three particular disputes he mentioned, I don’t think, for reasons I explore below, that the application of his approach across the constitutional realm would make things easy in any larger relevant sense.

Before I discuss the complexities of applying originalism writ large and uber alles, let me make clear that that (as I have written before) I consider myself an originalist in that I think interpreting text without looking at the historical context that generated that text makes no sense.  In other words, I think originalism, properly understood and consistently applied, is a very important component of legitimate constitutional interpretative methodology, notwithstanding my disagreement with the way Justice Scalia (and others on the Court) seem to have understood and implemented the idea of originalism in some settings.

But to say that originalism is important and helpful does not mean that it is easy. To see this, let us first look at what it would mean to say that all constitutional disputes should be analyzed and resolved by exclusive reference to originalism.  It would mean, among other things, that the Supreme Court’s cases from the 1960s holding that states may not impose poll taxes or property qualifications on the franchise, because under the Equal Protection Clause and other parts of Section One of the Fourteenth Amendment there is an individual right to vote for legislative elections, are flawed.  So too would be the cases holding, again under the Equal Protection Clause, that states cannot draw voter districts of significantly different sizes (thereby discriminating against urban voters); originalism would call into question the idea that the Equal Protection Clause guarantees “one person, one vote” in legislative elections.

These cases would be candidates for overturning because it seems pretty clear that no one at the time of the Fourteenth Amendment’s adoption in 1868 would have understood the words of Section One of that Amendment, including the Equal Protection Clause, to have anything to say about voting rights; the Amendment was written and explained to intelligent and informed interpreters of the day as being about “civil rights” (largely involving property rights), but not so-called “political rights,” such as voting and jury service.

Indeed, it’s hard to believe that informed and intelligent observers in 1868 would have understood the Amendment’s words requiring “equal protection of the laws” as forbidding racial segregation in schools or parks or water fountains.  Nor would folks in 1868 have understood those words as invalidating limits on interracial marriage.  Thus, cases like Brown v. Board of Education in 1954 (invalidating school segregation) and Loving v. Virginia in 1967 (invalidating bans on interracial marriage) might be vulnerable under Justice Scalia’s approach.

Even more vulnerable would be cases dating back to the 1970s holding that discrimination on the basis of gender is problematic under the Equal Protection Clause; the idea that people in 1868 would have understood the Clause to prohibit gender-based classifications is easily refuted by the historical record.

And, closer to the abortion setting that Justice Scalia mentioned in his recent remarks, it is hard, on originalist grounds, to explain Griswold v. Connecticut, the 1972 case invalidating Connecticut’s ban on contraception under the Due Process Clause of the Fourteenth Amendment; it’s easy to say that people in 1868 would not have expected the Due Process Clause to have any application to bans on contraception that were then in existence, and that would persist, in most places, for decades.

Even the sexual sodomy setting that Justice Scalia adverts to is fraught with complexity.  Justice Scalia says homosexual sodomy was made criminal for 200 years, so any claims of a constitutional right under the Fourteenth Amendment to engage in that activity are easily rejected.  And homosexual sodomy was widely criminalized in 1868.   But so was heterosexual sodomy!  Does that mean that, under an originalist approach, a state could prohibit oral sex between a consenting man and woman in the context of a committed relationship today?

Some Non-Originalist Outcomes That Justice Scalia Has Embraced

Perhaps Justice Scalia could live with all the potentially disruptive results that I have described above, which might be dictated if we applied originalism to these realms.  But originalism also calls into question some results that we know Justice Scalia has supported.  For example, there is no strong originalist case against race-based affirmative action, and yet Justice Scalia has embraced the rights of non-minorities to challenge affirmative action under the vision of a colorblind Constitution.  Justice Scalia has voted to aggressively protect commercial speech and the free speech rights of minors even though, at the time the First Amendment was adopted (and the time it was applied to the states through the Fourteenth), there is little to suggest that intelligent and informed folks of the day would have understood that these amendments would interfere with the myriad limits on commercial and children’s speech that were in effect at those times.

Or take the Eleventh Amendment, which the Court (with Justice Scalia’s support) has held protects States from being subject to liability for damages when state entities violate federal law, even though the text and history of the Eleventh Amendment refute, rather than support, any suggestion that intelligent folks of the day would have understood the Amendment to create such absolute immunity.

Counterarguments Make Things Harder, and Thus Further Undermine Scalia’s “Easy Cases” Claim

Some of the difficult questions I’ve raised above, about what a fully originalist legal world would look like, might be answered by creative rejoinders.  For example, sometimes cases that are “wrongly reasoned” from an originalist perspective might nonetheless reach a result that is correct for other reasons.   Here’s an illustration: Justice Scalia might say that the Eleventh Amendment immunity cases are correct not because they read the Eleventh Amendment properly, but because there is a general structural protection for states that emanates from the Constitution as a whole, putting aside the precise contours of the Eleventh Amendment.

But such a nuanced response takes us far beyond the realm of “easy.”  And such a response might be available to support other, non-originalist, case holdings with which Justice Scalia may not agree. For example, some have argued that the “right to vote” and malapportionment cases may not jibe with original understandings of the Equal Protection Clause (on which they purport to be based), but are nonetheless defensible under, respectively, Section Two of the Fourteenth Amendment (a different part of that Amendment) and the Republican Guarantee Clause that is found in another part of the Constitution.

Another possible rejoinder, in some settings, is that States acting as outliers are vulnerable to constitutional challenge.  Perhaps Justice Scalia would explain Griswold (and its protection of access to contraception) that way; in the Griswold case, Connecticut was virtually alone in that most other states had repealed or stopped enforcing their bans on contraception.  But getting around originalism this way in Griswold creates complexities for cases involving homosexual sodomy, because very few states try to criminalize homosexual conduct in the way Texas did in Lawrence v. Texas (the 2005 case invalidating Texas’ law, over Justice Scalia’s animated dissent.)  And certainly some states do look like outliers today with respect to various aspects of the death penalty, an area in which Justice Scalia finds it easy to reject claims.

Yet another rejoinder involves the level of generality at which one discerns the understandings of the intelligent people at the time of enactment.  Take racial segregation.  Folks who looked at the Equal Protection Clause in 1868 may have understood and expected that it would prohibit a system of state-imposed disrespect based on the race into which a person happened to be born, but they simply did not understand that segregation should be understood as visiting such disrespect.  In instances like this, there may be clashes between the understandings of a constitutional provision’s larger aspirations and its narrower applications.  Choosing to implement the former may not disrespect the values of originalism.

But once we start making moves like that, things get complicated.  If the Equal Protection Clause is understood, in originalist terms, to be about an anti-caste principle, why cannot that principle be understood to extend to women, gays, and lesbians if they too are being disrespected simply because of the group into which they are born?

And past judicial precedent is an additional (though by no means the only other) complexity worth mentioning.  Sometimes we might eschew originalism because there are already cases on the books that have decided the key questions.  But, in this regard, it is interesting that Justice Scalia does not seem to feel bound by precedent in the three areas—abortion, same-sex conduct, and the death penalty—that he mentions.

My point here is not to disagree with any particular outcome that Justice Scalia supports in these or other areas—in fact, I sometimes agree with his constitutional bottom line, and at other times do not.  But my goal here has simply been to suggest that all of this stuff is a long way from “easy.”