Issue 2

Statutory History

The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes. Indeed, Justice Scalia himself was famous for dissenting from paragraphs, sentences, or even footnotes in opinions that so much as casually mentioned a statute’s legislative history, even as corroboration for an interpretation reached through textual analysis. A less well-known corollary of modern textualism’s aversion to legislative history, however, is that textualists are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about the statute’s meaning. In fact, textualist Justices regularly use this kind of “statutory history” to draw inferences about a statute’s substantive meaning, even as they criticize the use of other, more traditional forms of legislative history.

It is at once surprising and instructive that textualists have embraced this kind of “statutory history” while rejecting traditional legislative history. On the rare occasions when they have acknowledged this dichotomy, textualists have sought to distinguish statutory history from traditional legislative history on the ground that the former involves comparisons of enacted statutory language, rather than mere commentary by legislators. Scholars have, largely uncritically, tended to accept these distinctions. But no one to date has studied the judicial use of statutory history in any significant detail, nor has anyone evaluated whether the theoretical justifications textualists offer for their use of statutory history, as distinct from traditional legislative history, hold up in practice.

This Article provides the first empirical and doctrinal examination of how the U.S. Supreme Court employs statutory history to determine a statute’s substantive meaning. Based on a study of 574 statutory cases decided during the Roberts Court’s first thirteen-and-a-half terms, this Article catalogues five different forms of statutory history inferences employed by the modern Court. It finds that (1) the Justices on the Roberts Court exercise significant discretion when drawing inferences from statutory history; and (2) while some of the statutory history inferences the Court draws are consistent with the theoretical justifications textualists have offered, many involve unenacted legislative materials or venture beyond traditional text-based analysis—and are difficult to distinguish from traditional legislative history or other contextual purposive evidence that textualists reject. In the end, this Article suggests that textualists should either abandon their reliance on statutory history altogether or, preferably, broaden their interpretive toolkit to include other forms of background legislative context evidence, at least as a check on the inferences they draw from statutory history.

Introduction

The New Textualism1 1.“New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990).Show More championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes.2 2.See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”).Show More A less well-known corollary of this interpretive approach is that Justice Scalia and his fellow textualists were and are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of a bill that ultimately became law or the original version of a statute that has since been amended—to speculate about a statute’s meaning. Indeed, textualist Justices regularly use such “statutory history”—the cold record of how a statute evolved from one version to the next—to draw inferences about a statute’s substantive meaning even as they criticize the use of other, more traditional forms of legislative history, such as committee reports or floor statements.

Consider two examples:

First, in Arizona v. United States, the Court considered whether federal law preempts an Arizona statute that regulates the behavior of immigrants who are unlawfully present in Arizona.3 3.567 U.S. 387 (2012).Show More One of the state law provisions at issue made it a crime for illegal immigrants to seek employment.4 4.Ariz. Rev. Stat. Ann. § 13-2928(C) (2011).Show More The Court, in an opinion authored by Justice Kennedy, ruled that the provision was preempted by federal law.5 5.Arizona, 567 U.S. at 405.Show More In so ruling, the Court noted that Congress chose to impose civil, rather than criminal, penalties for immigrants who engage in unlawful employment—and backed this up with statutory history about the process by which the Immigration Reform and Control Act of 1986 (“IRCA”) was enacted.6 6.See id.Show More Specifically, Justice Kennedy’s opinion noted that draft proposals to make unauthorized employment a criminal offense were introduced and “debated and discussed during the long process of drafting IRCA” and that “Congress rejected them.”7 7.Id.Show More Based on this drafting history, the Court concluded that IRCA’s framework “reflects a considered judgment” by Congress that immigrants should not face criminal sanctions for engaging in unauthorized work.8 8.Id.Show More

Second, in Nichols v. United States, the Court considered whether the Sex Offender Registration and Notification Act (“SORNA”) requires sex offenders who move out of state to update their registrations with the jurisdiction they have left.9 9.136 S. Ct. 1113 (2016).Show More SORNA provides that “[a] sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved” to “inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.”10 10.42 U.S.C. § 16913(c).Show More Nichols moved from Kansas, where he was a registered sex offender, to the Philippines—a foreign country not covered by SORNA—and neglected to register his departure with the state of Kansas; he was convicted of violating SORNA because he had failed to update his registration with Kansas.11 11.Nichols, 136 S. Ct. at 1117.Show More The Tenth Circuit upheld Nichols’ conviction, concluding that when a sex offender “leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved” under SORNA.12 12.Id.Show More In a unanimous opinion authored by Justice Alito, the Supreme Court disagreed, ruling instead that SORNA does not require sex offenders to update their registration in a state that they have departed.13 13.See id.Show More In so ruling, the Court relied on the statute’s plain meaning, grammar rules, practical reasoning, and SORNA’s statutory history.14 14.See id. at 1117–18.Show More Specifically, the Court noted that the Wetterling Act, a predecessor statute that SORNA replaced, explicitly required sex offenders to “report the change of address to the responsible agency in the State the person is leaving”—but that Congress declined to retain that language when it enacted SORNA.15 15.See id. at 1116 (emphasis omitted).Show More “If the drafters of SORNA had thought about the problem of sex offenders who leave the country and had sought to require them to (de)register in the departure jurisdiction, they could easily have said so; indeed, that is exactly what the amended Wetterling Act had required,” the Court explained.16 16.Id. at 1118.Show More Congress’s decision to employ different language in SORNA, the Court reasoned, was significant: if Congress wanted to require sex offenders to update their registrations in the states they departed, “Congress could have chosen to retain the language in the amended Wetterling Act.”17 17.Id.Show More Because Congress chose not to do so, the Court concluded that SORNA did not require Nichols to update his registration in Kansas once he no longer resided there.18 18.See id.Show More

In both of the above cases, the Court’s references to statutory history were designed to provide contextual support for its chosen statutory constructions. In highlighting that Congress considered and rejected a proposal to impose criminal penalties on immigrants who engage in unauthorized work and that Congress changed the Wetterling Act text requiring registration updates in the state of departure when it enacted SORNA, the Court sought to demonstrate that its reading of the relevant statutes’ texts was consistent with Congress’s likely intent. But it did so without citing the typical commentary by individual legislators or congressional committees that we ordinarily associate with the label “legislative history”—rather, it focused on changes Congress made to the statutes’ texts and on background legislative circumstances, and it used those developments to make its own inferences about Congress’s intent.

The inferences from statutory history employed by Justices Kennedy and Alito in Arizona and Nichols are not anomalous. Indeed, they are a fairly familiar feature of the Roberts Court’s statutory jurisprudence. But while the use of statutory history has been part of the Court’s interpretive arsenal for some time, scholars have paid surprisingly little attention to it as an interpretive resource. To date, only one article has examined the Court’s use of statutory history in any detail—and that article did so only briefly, in passing.19 19.SeeJames Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017).Show More No article has studied the Court’s use of statutory history systematically, and no article has sought to illuminate the different types of inferences the Court draws from such history or to evaluate normatively the justifications offered for employing this form of history, in contrast to traditional legislative history.

This Article seeks to fill that void. It provides the first in-depth analysis of the multiple ways in which the modern Supreme Court uses statutory history to draw inferences about a statute’s intended meaning. While the Article is primarily doctrinal in nature, it draws from an empirical database of 574 statutory cases decided during the Roberts Court’s first thirteen-plus terms to supplement its analysis. Ultimately, this Article aims both to provide a catalogue of the different kinds of interpretive inferences the Court makes when examining a statute’s historical evolution—what the Article refers to as “statutory history”—as well as to evaluate whether textualist Justices’ willingness to employ statutory history can be squared with their unwillingness to examine traditional legislative history or other forms of background legislative context.

Five points stand out from the data and doctrinal analysis: (1) the Roberts Court’s overall use of statutory history is moderate—15.7% of the cases in the dataset employed such history; (2) all of the Justices, irrespective of their interpretive methodology, invoke statutory history in the opinions they author; (3) the Court’s most committed textualist Justices invoke statutory history more often than they invoke traditional legislative history; (4) there are at least five different forms of inferences that the Justices tend to draw from statutory history; and (5) nearly two-thirds of the statutory history inferences the Court employs conflict in some way with the parameters textualists have articulated to distinguish statutory history from traditional legislative history.

This Article proceeds in three Parts. Part I defines what is meant by the term “statutory history,” examines the ways in which this interpretive resource differs from traditional legislative history, and reviews the limited existing literature on statutory history. Part II reports data about the Roberts Court’s use of statutory history in the 574 statutory cases decided during its first thirteen-and-a-half terms. Part II also provides a catalogue of the different forms of inferences the Court draws from statutory history, as well as offers doctrinal observations about the Court’s use of this interpretive aid. Part III evaluates the theoretical implications of the Roberts Court’s approach to statutory history, noting that the decontextualized use of statutory history shifts to judges, rather than legislators, the authority to fill in the gaps between different versions of a statute—and that judges engage in substantial speculation when performing such gap filling. It argues that while some forms of statutory history approximate the logical inferences common to traditional textual analysis, others share important features in common with traditional purposive interpretive tools—and are thus inconsistent with the justifications textualists have offered for embracing statutory history while rejecting traditional legislative history. In the end, Part III suggests that textualist judges should either end their reliance on statutory history altogether or, better yet, broaden their interpretive toolkit to include other forms of background legislative contextual evidence, at least as a check on the inferences they draw from statutory history.

  1. * Professor of Law, Georgetown University Law Center. I owe deep thanks for valuable insights and conversations to James J. Brudney, Aaron-Andrew Bruhl, Catherine B. Duryea, William N. Eskridge, Jr., Margaret H. Lemos, Kevin Tobia, and participants at workshops at Yale Law School and the University of Southern California School of Law. I am especially indebted to my husband, Ron Tucker, for his patience and support throughout this project. Thanks also to Deans William M. Treanor and Michael A. Simons of Georgetown University Law Center and St. John’s University School of Law, respectively, for generous research support. Kathryn Baldwin, John Burger, Danielle DelGrosso, Thomas Combs, Christina Corcoran, Brian Dolan, Sade Forte, Kim Friedman, Ilya Mordukhaev, Vince Nibali, Melissa Parres, Barbara Reilly, Jennifer Roseman, Peter Ryan, Christine Sammarco, Jonathan Sclar, Sean Kelly, Ashleigh Shelton, Samuel Sroka, Jennifer Thomas, Rita Wang, and Lissa Yang provided excellent research assistance, and Janet Ruiz-Kroll provided invaluable assistance with the tables. All errors are my own. ↑
  2. “New Textualism” is a term coined by Professor William Eskridge to describe the statutory interpretation methodology advanced by Justice Scalia beginning in the late 1980s. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 & n.11 (1990). ↑
  3. See, e.g., Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 29–37 (1997) (“I object to the use of legislative history on principle.”); William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509, 1512 (1998) (“Doctrinally, the new textualism’s most distinctive feature is its insistence that judges should almost never consult, and never rely on, the legislative history of a statute.”). ↑
  4. 567 U.S. 387 (2012). ↑
  5. Ariz. Rev. Stat. Ann. § 13-2928(C) (2011). ↑
  6. Arizona, 567 U.S. at 405. ↑
  7. See id. ↑
  8. Id. ↑
  9. Id. ↑
  10. 136 S. Ct. 1113 (2016). ↑
  11. 42 U.S.C. § 16913(c). ↑
  12. Nichols, 136 S. Ct. at 1117. ↑
  13. Id. ↑
  14. See id. ↑
  15. See id. at 1117–18. ↑
  16. See id. at 1116 (emphasis omitted). ↑
  17. Id. at 1118. ↑
  18. Id. ↑
  19. See id. ↑

  20. See James Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688–89 (2017). ↑

The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government

This Note brings novel historical evidence to bear on the question of whether religious exemptions from neutral, generally applicable laws are compelled by the First Amendment. In the wake of the Supreme Court’s decision in Smith (1990), a robust scholarship on relevant historical practice has emerged on both sides of the issue. Those in favor of religious exemptions argue that history supports their position because (1) the period after ratification was marked by extensive religious freedom and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.

This Note shows how recently uncovered evidence about the disestablishment regulation of religious institutions, especially the proliferation of the corporate form, undermines both of these propositions. Religious freedom in the period after ratification was sought through government regulation, not through exemption, and early state governments were hardly limited in their invasions into church domain. An accurate history matters here. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence and the addition of Justices committed to constitutional interpretation centered on historical meaning indicate that the history of free exercise during the Founding era may prove decisive the next time that the Court considers the issue of religious exemption.

Introduction

In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place.1 1.See generally Walter J. Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004) (recounting the history of Father Kohlmann’s case at length).Show More One of his parishioners, James Keating, had reported a theft of jewelry to the police.2 2.William Sampson, The Catholic Question in America 5 (N.Y., Edward Gillespy 1813).Show More Later, Keating withdrew his complaint after his property was returned.3 3.Id.Show More Keating, out of fear of being arrested, admitted that Father Kohlmann arranged the return of his stolen goods.4 4.Id.Show More Based on other evidence, two immigrants who were members of St. Peter’s were indicted as receivers of the stolen property, and Father Kohlmann was called as a witness to identify those whom he had convinced to return the stolen jewelry.5 5.Id. at 5–6.Show More The priest had a choice: refuse to testify and be jailed, or reveal the names of his penitent parishioners and, in his own words, “become a traitor to my church, to my sacred ministry and to my God.”6 6.Id. at 9; Walsh, supra note 1, at 21.Show More A lower state court found that the choice Father Kohlmann had been put to was untenable. It held that an exemption from the evidentiary requirements of the courtroom was mandated by the New York Constitution’s religious free exercise provision.7 7.SeeSampson, supra note 2, at 108–14.Show More

As the first state court decision to require an exemption on the basis of free exercise,8 8.See Walter J. Walsh, The Priest-Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence, 80 Ind. L.J. 1037, 1038 n.4 (2005).Show More Father Kohlmann’s case—known as People v. Philips—has become a popular object of study.9 9.See Walsh, supra note 1; Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1410–12 (1990).Show More For those who believe that the Federal Constitution’s Free Exercise Clause requires similar exemptions, Father Kohlmann’s case is evidence that early state practices were consonant with a pro-exemption interpretation of the First Amendment.10 10.Walsh, supra note 1, at 2, 95; McConnell, supra note 9, at 1410–12.Show More Recent scholarship calls the case “the first constitutional victory for religious freedom,” and argues that this lower state court decision belongs “at the historical center of judicial and scholarly free exercise discourse.”11 11.Walsh, supra note 1, at 1–2.Show More That history, according to those in favor of exemptions, was characterized by an “Expansive Conception of Religious Freedom,” one that emerged in the context of a limited American government that stayed in its lane, out of the way of religion.12 12.McConnell, supra note 9, at 1436; see also infra Section II.A (summarizing the pro-exemption view of the historical record).Show More

But the story of Father Kohlmann’s Scylla and Charybdis, and of this rare13 13.McConnell notes that there was little litigation over early religion clauses in either the state or Federal Constitutions. See McConnell, supra note 9, at 1503.Show More early litigation, central to the historical case for free exercise exemptions, has been read in isolation. A fuller assessment of the nature of the religious freedom that New York recognized in 1813 requires considering not only Father Kohlmann’s exemption but also the laws that his church was subject to at the time: onerous and invasive state regulations from which no exemption was sought or given. In 1813, St. Peter’s Church, like others in New York, was governed by a board of trustees.14 14.SeeWalsh, supra note 1, at 21.Show More These lay members of the church were vested with power from the state and controlled church property and decision making.15 15.See Patrick J. Dignan, A History of the Legal Incorporation of Catholic Church Property in the United States, 1784–1932, at 53–54 (1933).Show More As the earliest Catholic Church in New York City, St. Peter’s had elected to incorporate under state law in 1785, just one year after the state extended the power to incorporate to Catholic churches.16 16.See id. at 54.Show More In 1813, the same year that Father Kohlmann won his exemption, the state updated its corporate law governing religious institutions and placed the control of church property, minister salaries, “rules and orders for managing the temporal affairs” of the church, and even the power to break ground in cemeteries firmly in the hands of the majority of lay trustees.17 17.See An Act to Provide for the Incorporation of Religious Societies, ch. 60, §§ 3–4, 8, 2 N.Y. Sess. Laws 212, 214–15, 217 (1813).Show More

In light of the requirements of New York’s corporate law, the Catholic Church which Father Kohlmann led was not only his to control. As Walsh points out, while the district attorney sought to drop the prosecution, it was the church’s lay trustees, not its priest, who insisted that the case be brought to trial, hoping to publicly secure the priest-penitent privilege in New York.18 18.SeeWalsh, supra note 1, at 21.Show More Contrary to Catholic ideology, then, St. Peter’s temporal property and direction were held by the church’s lay trustees, backed and governed by the state’s corporate laws.19 19.See Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property Before the Civil War, 162 U. Pa. L. Rev. 307, 347–50 (2014) (documenting the disruptive quality of disestablishment corporate law for Catholicism in America).Show More These legal mechanisms controlling religious institutions in New York were typical of regulations across the country, most of them passed during the era that Sarah Gordon calls the “First Disestablishment.”20 20.Id. at 307, 311–12. Gordon dates the First Disestablishment as occurring between 1786 and 1833. Id. at 310.Show More Sounding in corporate law, these regulations restricted church property, interfered with internal church governance, and shaped what “religious freedom” meant in New York and in the early United States.21 21.Id. at 321–24.Show More Yet this history has thus far been largely ignored, both by those championing People v. Philips as a high watermark of religious freedom and, more generally, in the fierce debate over the history of the Free Exercise Clause.22 22.See infra Section II.D.Show More This Note refracts that debate through the lens of disestablishment regulation of religious institutions. In doing so, it posits that state interventions into religion during the First Disestablishment undermine the historical case for religious exemptions.

It is important to precisely identify the constitutional issue at play, one that remains hotly contested some 200 years after Father Kohlmann took confession. The question is this: Where a neutral, generally applicable law imposes an incidental burden on an individual’s free exercise of religion, does the Constitution mandate an exemption?23 23.This framing of the issue reflects the Supreme Court’s most recent significant re-appraisal. See Emp. Div. v. Smith, 494 U.S. 872, 883–89 (1990).Show More The center of the exemptions debate thus turns on the standard of judicial review applicable to incidental burdens on religion.24 24.See Douglas Laycock, The Religious Exemption Debate, 11 Rutgers J.L. & Religion 139, 141–42 (2009).Show More Must the government offer merely some form of rational basis to defend a generally applicable law against a claim of exemption, or does the government need to demonstrate that it has a compelling interest and has narrowly tailored the statute at issue?25 25.Compare Smith, 494 U.S. at 879 (asserting that the right to free exercise does not reach a “valid and neutral law of general applicability”), with id.at 894–95 (O’Connor, J., concurring in judgment) (citing precedent that requires the government to justify a substantial burden on free exercise with a “compelling state interest and by means narrowly tailored to achieve that interest”).Show More Those in favor of exemptions argue that the government must do the latter in order to impose incidental burdens on religious free exercise.26 26.See, e.g., Laycock, supra note 24, at 151.Show More Those opposed to exemptions contend that no such showing is required and that neutral and generally applicable laws do not trigger heightened review under the Free Exercise Clause.27 27.See, e.g., Smith, 494 U.S. at 879 (holding that heightened review was not required for a neutral, generally applicable law that imposed an incidental burden on the free exercise of religion); Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 936–40 (1992) (arguing that the original understanding and practice under the Free Exercise Clause provides no support for a right to regulatory exemptions).Show More

Since the Supreme Court first encountered the issue of religious exemptions in 1878,28 28.SeeReynolds v. United States, 98 U.S. 145, 166 (1878).Show More the doctrine has evolved between these positions. In contrast to the Court’s Establishment Clause jurisprudence,29 29.Recent Establishment Clause jurisprudence has featured various forms of historical analysis as part of the Court’s decision making. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2089 (2019) (“The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”); Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8–14 (1947) (tracing disestablishment history beginning with immigration from Europe); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 852–62 (1995) (Thomas, J., concurring) (contextualizing Madison’s Memorial and Remonstrance Against Religious Assessments to argue that the Establishment Clause does not require the government to exclude religious adherents from generally available government subsidies); id. at 868–72 (Souter, J., dissenting) (denying Justice Thomas’ characterization of Madison’s letter).Show More the Court has often ruled on free exercise exemption claims without reference to the history of the First Amendment.30 30.See Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1794–95 (2006).Show More However, in the aftermath of Employment Division v. Smith—one of the Court’s most significant and least historically inflected decisions on the issue—a vibrant scholarly debate developed around the history of the Free Exercise Clause, with academics interpreting Founding-era historical sources in order to support their preferred interpretation of the First Amendment.31 31.See infra Part II.Show More Faced with an ambiguous constitutional provision and little legislative history, scholars and Supreme Court Justices have turned to persuasive authority in an attempt to determine whether the Free Exercise Clause at the time of the Founding accorded with, required, or ran against, constitutionally compelled exemptions for religion.

The sources of historical authority relied on in the exemptions debate are numerous, yet recent research on disestablishment regulation of religious institutions has hitherto been ignored. Gordon’s intervention—analyzing state regulation of religious institutions as states removed government support for the church following ratification—casts doubt on two of the premises undergirding the historical case for religious exemptions. Those in favor of constitutionally compelled religious exemptions argue that (1) the period after ratification was marked by an “expansive conception of religious freedom” consonant with constitutionally required exemptions for religious free exercise and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.32 32.See, e.g., McConnell, supra note 9, at 1415, 1436–49 (advancing both of these positions).Show More The history of disestablishment regulations complicates the first of these arguments because, as Gordon argues, religious freedom during disestablishment was sought through government regulation of the church, not through the exemption of religious institutions from the law.33 33.See infra Part III.Show More The proposition that early American government was “limited” is even more seriously undermined by the history of disestablishment, which demonstrates that early state government relations with the church were characterized by invasive state oversight, especially through corporate laws regulating private property and lay governance.34 34.Id.Show More

This limited intervention does not add to Gordon’s impressive recent work on disestablishment history. Instead, this Note draws out the full significance of that history, by showing how disestablishment regulation unsettles the free exercise exemption debate. Gordon framed her intervention in terms of the relationship between religious institutions and individual conscience.35 35.See Gordon, supra note 19, at 311 (“This first system of disestablishment imposed discipline on religious institutions . . . based on concerns for individual conscience and lay control.”).Show More Yet the story that she uncovered—of religious liberty sought in and through state regulation—is also powerful evidence of the nature of the Free Exercise Clause after ratification. A full account of the history matters for two reasons. On the one hand, disestablishment regulations of religious institutions bear on how we think about the rights of religious individuals and institutions.36 36.See, e.g., Michael W. McConnell, John H. Garvey & Thomas C. Berg, Religion and the Constitution 64 (4th ed. 2016) (a leading textbook on the subject).Show More On the other, this history may well shape the Supreme Court’s future free exercise jurisprudence. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence,37 37.See supra note 29 and accompanying text.Show More and the addition of Justices committed to constitutional interpretation centered on historical meaning,38 38.There is good reason to believe that Justices Gorsuch, Kavanaugh, and Barrett are open to, if not outright supporters of, historical analysis as a supplement to constitutional interpretation. SeeNeil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. L. Rev. 905, 906 (2016) (arguing that judges should seek to apply the law by looking to “text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be”); Tucker Higgins, Read Brett Kavanaugh’s Full Opening Remarks in his Supreme Court Confirmation Hearing, CNBC (Sept. 4, 2018), https://www.cnbc.com/2018/09/04/read-brett-kavanaughs-full-rem­arks-to-the-senate-judiciary-committee.html [https://perma.cc/6QRM-H8K2] (“A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.”); Kanter v. Barr, 919 F.3d 437, 453–65 (7th Cir. 2019) (Barrett, J., dissenting) (performing an in-depth historical analysis to conclude that “[h]istory does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons,” but “it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous”).Show More indicate that the history of free exercise during the Founding era may well prove decisive the next time that the Court considers the issue of religious exemptions.39 39.The Supreme Court has granted certiorari and received merits briefs on the question of whether to overrule Smith. As of this Note’s writing, the Court’s opinion has not been released. Petition for Writ of Certiorari at i, Fulton v. City of Philadelphia, 140 S. Ct. 1104 (2020) (No. 19-123); Brief for Petitioners at 37, Fulton, 140 S. Ct. 1104 (No. 19-123); Brief for City Respondents at 47, Fulton, 140 S. Ct. 1104 (No. 19-123); see also Micah Schwartzman, Richard Schragger, & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/­2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/42ED-WR­NT] (discussing the new conservative majority’s likely path in expanding free exercise rights). And four of the Court’s conservative Justices have signaled an intent to reverse Smith. Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of certiorari) (signaling an intent to “revisit” Smith); Howard Gillman & Erwin Chermerinsky, The Weaponization of the Free Exercise Clause, Atlantic, (Sept. 18, 2020), https://www.theatlantic.com/ideas/archive/2020/09/weaponization-free-exercise-clause/616373/ [https://perma.cc/3GJZ-EEVN] (arguing that “the conservative justices on the current Court reject Scalia’s reasoning and may be about to overrule Employment Division v. Smith”); Eugene Volokh, Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws?, Volokh Conspiracy (Jan. 1, 2019), https://reason.com/2019/01/22/will-the-court-read-the-free-exercise-cl/ [https://perma.cc/7LDL-W788] (observing that the statement denying certiorari in Bremerton suggested the four Justices’ willingness to overrule Smith and that Justice Breyer had echoed this sentiment in City of Boerne v. Flores, 521 U.S. 507 (1997)).Show More

The first Part of this Note summarizes the three major phases of free exercise doctrine in the Supreme Court, with particular attention to the Court’s irregular engagement with historical evidence. Second, the extant scholarship on the history of free exercise is summarized, along with its influence in the Supreme Court. The Note’s third Part considers recent research on early state regulations applicable to religious institutions during the First Disestablishment. This Part shows how disestablishment history qualifies claims about expansive religious freedom and “limited” government during the Founding era. This Part also considers three objections to the use of disestablishment history to interpret the meaning of the Constitution’s Free Exercise Clause. The Note concludes by reflecting on the importance of the exemptions issue during the Founding era and today, the stakes of historical analysis for the Supreme Court’s Religion Clauses jurisprudence, and the potential for a historically inflected reappraisal of Free Exercise Clause doctrine.

Vagueness Attacks on Searches and Seizures

Introduction

The void-for-vagueness doctrine promises to promote the rule of law by ensuring that crimes are defined with sufficient definiteness to preclude indefensible and unpredictable applications. But the doctrine fails to fulfill that promise with respect to many low-level crimes. Those crimes are beyond the reach of the vagueness doctrine because they rarely, if ever, serve as the basis for charges in a criminal case that is seriously litigated.1 1.See infra Part II.Show More It is not that these low-level crimes have no use. Police use them all the time to justify stops and arrests, which can lead to searches that uncover evidence of more serious crimes. But when charges are brought for the more serious offenses, vagueness attacks have not been allowed when aimed at the low-level crimes on which the searches and seizures were predicated.2 2.See Michigan v. DeFillippo, 443 U.S. 31, 40 (1979).Show More

The thinking has been that an officer does not violate the Fourth Amendment when making a good-faith search or seizure, supported by adequate individualized suspicion, for a suspected violation of a low-level crime not yet judicially invalidated at the time of arrest. The inquiry is primarily factual in the sense that it concerns only the information available to the officer at the time of arrest. That is, the arresting officer is not expected to speculate or anticipate that the law will be struck down in the future. If the fact of invalidation did not occur before the arrest, it cannot be used to undermine it.3 3.See id. at 37–38.Show More

This rationale has obvious appeal. It makes sense not to expect officers to make legal determinations about the constitutional validity of a law before enforcing it; that task would seem better suited for judges. But application of the rule comes at a significant cost. Many of the low-level offenses used to justify stops and arrests perpetually evade judicial review.

Consider the following scenario: An officer arrests an individual pursuant to a city loitering ordinance that makes it unlawful for a person to refuse to identify himself at an officer’s request. The officer conducts a search incident to arrest, which reveals a gun. The individual is later charged with being a felon in possession of a firearm. If the defendant were to move to suppress the gun on the ground that it was discovered during a search predicated on an ordinance that is unconstitutionally vague, the court would deny the motion without ever addressing the vagueness question; the court would conclude that it need not reach that question because the officer was entitled to rely on the ordinance, which had not been invalidated at the time of arrest. That conclusion leaves the low-level crime just as it was—unreviewed and available for future use by police. The same sequence can and does occur repeatedly, insulating low-level crimes from vagueness challenges.

This Article explores that problem and argues that a solution is hiding in plain sight. It challenges the notion that a defendant may not successfully lodge vagueness attacks on searches and seizures in light of two Supreme Court decisions decided during the same Term—Johnson v. United States4 4.576 U.S. 591 (2015).Show More and Heien v. North Carolina.5 5.574 U.S. 54 (2014).Show More As I will explain, the two cases, especially Heien, lay the groundwork for solving the insulation problem just described.

The defect in many vague statutes is that they are so open-ended that they effectively allow the police to observe conduct, define the content of the crime to cover it, and then make an arrest based on probable cause that the arrestee committed the newly invented crime. That violates due process to the extent it permits officers to enforce a criminal statute in a way that is unexpected and indefensible in light of the text of the law being enforced and any relevant legal sources that bear on that text’s interpretation.6 6.See infra Section I.A.Show More

The Supreme Court’s decision in Heien gives officers enforcing indefinite laws some leeway when applying them. Their interpretations of the laws may be mistaken so long as they are objectively reasonable. This inquiry is purely legal or analytical. The government must be able to point to something in the text of the law or other relevant sources that affirmatively supports the officer’s interpretation; it may not simply note the absence of a judicial decision foreclosing the officer’s view of the law. As Justice Kagan explained in her concurrence in Heien, the government must show that “a reasonable judge could [have] agree[d] with the officer’s view” in light of the relevant legal sources.7 7.Heien, 574 U.S. at 70 (Kagan, J., concurring).Show More

It follows that a mistaken interpretation is unreasonable—and therefore a Fourth Amendment violation—when no reasonable judge could have adopted it in light of the statutory text and available legal materials bearing on the meaning of that text. That is essentially the same claim made when a defendant argues that the law under which he was arrested is unconstitutionally vague—that the law was so open-ended that it permitted an officer to interpret and apply it in a way that was unpredictable and indefensible in light of the law that had been stated at the time. In this way, the framework of Heien opens the door to vagueness attacks on searches and seizures.

The Article proceeds in four Parts. Part I sets the table by describing the content of the vagueness doctrine, the proliferation of low-level crimes that followed the invalidation of vagrancy statutes on vagueness grounds, and the longstanding rule that vagueness attacks may not be lodged successfully against laws serving merely as a basis for arrest. Part II explores the problem that longstanding rule has created, namely that countless low-level offenses are effectively insulated from judicial review on the vagueness question. Part III is the heart of the Article. It argues that Johnson and Heien provide the analytical architecture for successful vagueness attacks on searches and seizures in the context of a motion to suppress. Part IV then identifies potential obstacles to that theory—the prospect of narrowing constructions that cure otherwise vague statutes and the good-faith exception to the exclusionary rule—but argues that they can ultimately be overcome.

The result is a coherent and defensible theory for raising vagueness challenges in the context of a motion to suppress. Again, the primary benefit of this theory is to ensure that even low-level crimes are reviewed for constitutional vagueness. But the theory is broadly applicable. It can be used for vagueness attacks on any crime, low-level or not, on which a search or seizure is premised.

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