Equity Trapped in Amber

A Critique of “Equitable Originalism” Through a Historical and Comparative Lens

The New Digest is pleased to present this guest post from Dr Anna Conley. Dr. Conley is an Assistant Professor at the Alexander Blewett III School of Law at the University of Montana, and has a background in civil law. The post explains some of her important recent work on the judicial power, equity, and originalism, both in the United States and in comparative perspective.

Equitable originalism, a version of strict originalism focused on courts’ equitable powers, is inconsistent with American legal history and without parallel in other countries’ courts. Let’s start by defining strict originalism. Originalism is a family of constitutional theories without a single definition. Originalists focus on historical analysis to discern original meaning, but sometimes also utilize textualism, precedent and post-ratification history and tradition. U.S. v. Rahimi and Vidal v. U.S. Patent and Trademark Office most recently demonstrated variations on originalism, in which the justices generally associated with originalism took different views on originalist methodology. Strict originalism requires adherence to the “fixation” and “constraint” principles. The fixation principle requires judges to use historical analysis to find a constitutional provision’s fixed original meaning. The constraint principle is a normative mandate directing judges to give dispositive weight to a constitutional provision’s fixed original meaning in present-day cases.

Equitable originalism is a strain of strict originalism which posits that the original meaning of “equity” in Article III is English chancellors’ equitable powers at the time of ratification in 1788. Equitable originalism constrains federal judges’ equitable powers today to English chancellors’ equitable powers in the 1780s, absent statutory authorization. Equitable originalism was first espoused in a U.S. Supreme Court 5-4 decision in 1999,[1] and has resurfaced in recent U.S. Supreme Court decisions.[2] The potential impact on judges’ remedial powers under Article III is significant. We should be cognizant of its fallacies and shortcomings before it gains more steam.

In a recent article in the NYU Journal of Law and Liberty, I utilize historical analysis to establish that Article III’s “equity” was not crystallized upon ratification, but instead, described a principle-based judicial power that was expected to adapt to changing circumstances. References to equity in the Federalist, the Federal Judiciary Act, early U.S. Supreme Court rules, the Process Acts of 1780, 1792 and 1828, early U.S. Supreme Court cases, and early treatises establish a flexible and adaptable original meaning of equity. Historical analysis highlights a fallacy in originalism’s use of the fixation and constraint principles – what happens if the fixed meaning of a constitutional term is necessarily adaptable?

The United States received English common law with the explicit expectation that it would change to adapt to new industries, technologies and other societal changes. Because equity’s primary function was to ameliorate the common law’s inadequacies, logic dictates that equity would also change. The framers’ understanding of equity drew on centuries-old natural law conceptions of equity traced from Greek to English law. For example, Justice Story linked equity’s corrective function to Aristotle’s definition of equity as “the correction of the law wherein it is defective by reason of its universality.”[3]

In 1896, the U.S. Supreme Court cited Pomeroy’s definitive equity treatise to explain that equity “has always preserved the elements of flexibility and expansiveness . . . in order to meet the requirements of every case, and to satisfy the needs of a progressive social condition in which new primary rights and duties are constantly arising and new kinds of wrongs are constantly committed.”[4] It does not follow that equity is unbridled or unfettered. Equitable principles developed over hundreds of years remain relatively unchanged, and application of these principles to changing circumstances is the role of equitable judicial power. Equitable originalists, however, would constrain not only the principles but their application.

If U.S. history does not support equitable originalism, what does looking outside the United States tell us? Comparing constitutional interpretation by other countries’ courts with strict originalism contextualizes its oddity. My forthcoming article in the Emory Journal of International Law uses a comparative lens to interrogate strict originalism’s mandate constraining present-day judges to fixed original meaning. Existing comparative analyses illustrate that other countries’ courts utilize history in constitutional interpretation as part of purposive analysis to identify the purpose behind a constitutional provision. This is not strict originalism because it does not constrain a judge to a fixed meaning of the term at the date of ratification, but instead allows the judge to apply the purpose underlying the provision.

Other courts generally use history in pluralist analyses as one of multiple constitutional interpretation methodologies, including textualism, precedent, principles underlying the constitution and its structure, and comparative and international law. Pluralist interpretation that includes historical analysis is not strict originalism because the constitutional provision’s fixed meaning at ratification is not dispositive, and the judge is not constrained by that fixed meaning without regard to other considerations.

Comparative constitutionalism shows that originalism’s ramifications depend on a constitution’s age and textual detail. For older liberal democratic framework constitutions like the U.S. constitution, originalism results in rights retrenchment because such constitutions set forth few rights and focus instead on establishing a governance framework. Ratification history would necessarily not include rights not yet conceived of, even though 240 years later, protection of newer rights may further the purposes behind the constitution. However, for newer teleological or ideological constitutions with more robust rights explicitly set forth, originalism would result in the furtherance of rights, as opposed to retrenchment.

Comparatists have also asked whether political, historical or cultural factors encourage or discourage use of originalism by courts. Originalism in the United States is associated with a conservative political movement’s reaction to the Warren court. Australia and Israel have seen a similar relationship with originalism as part of a larger conservative movement responding to perceived excess by courts using constitutional interpretation to identify implied rights. Comparatists have also analyzed whether revolutionary constitutions or faith-based populations facilitate originalism, but no correlation is readily apparent.  

One can use a comparative lens to interrogate originalism’s normative mandates binding present-day decisionmakers to fixed historical meanings. Specifically, comparatists can distill principles and conceptual frameworks by exploring law across time and legal systems. In this vein, two comparative law principles I propose are: (1) all systems need “interpretive valves” that allow development of a legal system, and (2) legal transplants always change between different legal systems.

“Interpretative valves” are mechanisms that allow a legal system to develop as society develops. Religious legal systems are interesting examples of interpretive valves because their origin is often the unchangeable word of God. In Islamic law, for example, despite the Qur’an representing divine mandates, multiple methods exist to understand the principles behind the Qur’an and apply those principles to changing circumstances. Specifically, the concepts of fiqh and ijthihad allow Islamic legal experts to engage in interpretive efforts and analogical reasoning to “find” the Islamic law applicable to novel situations.  

Interpretive valves are largely impervious to “artificial barriers” that attempt to cut off such mechanisms. For example, when the European Court of Justice (“ECJ”) prohibited English courts from using the common law discretionary jurisdiction doctrines of forum non conveniens and anti-suit injunctions as contrary to the Brussels regime, English legal stakeholders strongly rejected such barriers to these equitable doctrines and identified ways to minimize the ECJ’s prohibitions. Common law courts use these discretionary jurisdiction doctrines as interpretive valves to avoid abuse by bad faith litigants and further judicial efficiency in various types of cases. The English legal system quickly tried to move around the ECJ’s artificial barrier on these interpretive valves, like water around a stone.

Purposive and pluralist constitutional interpretation is an interpretive valve utilized across the world to apply constitutional provisions to new cases. This interpretive valve is an alternative to constitutional amendment, which is incredibly difficult in many countries, including the United States, and is a far less efficient interpretive valve than purposive and pluralist constitutional interpretation. Equitable originalism is an artificial barrier to the common law tradition’s inherent understanding of equity as a principle-based judicial power meant to adapt to changing circumstances.

Another principle gleaned from comparative law is that legal transplants always change. Legal transplants are aspects of one legal system “transplanted” to another. They can happen in a myriad of ways, including voluntary reception of the transplant. One example is the U.S. framers’ inclusion of “equity,” which is an English legal transplant, in Article III. Comparatists generally agree that legal transplants always change from one system to another. After decolonization, the Privy Council and former English colonies acknowledged that English legal transplants would and should look different in former colonies. Therefore, it is unsurprising that English law has drastically changed in former colonies as new legal systems addressed unique economic, societal and environmental differences, re-incorporated indigenous legal concepts, and developed unique nation-state identities. Similarly, legal transplants throughout the civil law tradition have drastically changed from their Roman law roots, and Islamic law looks different in each legal system it touches, despite a common point of origin.

Through this lens, equitable originalism would have the United States be the only former English colony, and in fact, only nation-state in the world, whose law was crystalized at the time of founding, tethered to bedrock concepts as understood by the colonizing country’s courts. Why would we fight for independence and drastically re-figure our concept of governance and separation of powers only to anchor ourselves to an unchanging English manifestation of equity in the 1780s?

The method of constitutional interpretation used is a choice. There is nothing inherent in strict originalism that compels us to follow its strictures. For much of U.S. history and throughout the world, courts have chosen a pluralist toolkit of purposive historical analysis, textualism, precedent, and post-ratification traditions. With its flaws demonstrated through both a historical and comparative lens, equitable originalism exemplifies how strict originalism can act as a barrier to the development of law, contrary to the framers’ conception of equity and constitutional interpretation throughout the world.

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[1] Grupo Mexicano de Desarrollo, S.A., 527 U.S. 308 (1999).

[2] See Trump v. Hawaii, 138 S.Ct. 2392, 2425 (2018) (Thomas, J., concurring); Dep’t of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020) (Gorsuch, J. concurring); Whole Woman’s Health v. Jackson, 142 S.Ct. 522, 535 (2021) (Gorsuch, J).

[3] Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America, §3, at 3 (W.H. Lyon ed., 14th ed. 1918) (1835).

[4] Union Pac. Ry. Co. v. Chi., Rock Island & Pac. Ry. Co., 163 U.S. 564, 601 (1896) (citations omitted).