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Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L.J. 941 (2023).

Here is the puzzle. On one hand, various species of originalism have ostensibly come to dominate American constitutional law. “We are all originalists,” Justice Elena Kagan contended during her 2010 confirmation hearings. “Is originalism our law?” William Baude asked in widely cited 2015 Columbia Law Review article. (His answer was a qualified and nuanced “yes.”) And in the last couple of years, originalism at the Supreme Court has become broad and deep. Broad, in that originalist arguments have proven resistant to countervailing methodological tools such as precedent or even text, allowing originalist arguments to prevail in a wider range of constitutional settings. Deep, in that on issues such as gun rights, the Court has demanded more and more in the way of precise historical analogies from the Founding (or the Second Founding).

On the other hand, Mila Sohoni observes that despite originalism’s rise, one area has been mostly absent from originalism’s reach—procedure. Sohoni focuses on a body of law she terms “constitutional civil procedure,” explaining that a number of important questions in civil procedure turn on interpretations and constructions of constitutional text. Sohoni cabins her analysis to constitutional doctrines that tend to be taught in civil procedure as opposed to courses on constitutional law, federal courts, or remedies. Originalism has barely touched core questions of civil procedure. “It would be tempting to say that all this has been hidden in plain view, but that would only be a half-truth. Civil procedure’s nonoriginalism hasn’t been hidden at all. And yet—until recently—few originalists have faulted procedural law for its infidelity to original meaning.” (P. 992.)

Sohoni offers numerous examples; consider three.

First, is Washington, D.C. a “state” for purposes of diversity jurisdiction in Article III, which permits suits “between citizens of different States?” Hepburn & Dundas v. Ellzey said no in 1805. Writing for the Court, Chief Justice Marshall acknowledged that not treating citizens of the District of Columbia as citizens of a state produced an odd and perhaps undesirable set of consequences. More than a century later, in a fractured set of opinions, National Mutual Insurance Co. v. Tidewater Transfer Co., said they are, assigning greater weight to these consequences. Sohoni observes that this “outcome—the continued allowance of diversity jurisdiction to D.C. citizens—is pragmatic. It is reasonable. It is fair. It is just not originalist.” (P. 977.)

Second, are corporations “citizens” for suits between citizens of different states? Corporations rely on this head of jurisdiction to sue (and be sued) in federal court. Sohoni shows, however, that treating corporations as “citizens” is incompatible with early cases such as Bank of the United States v. Deveaux, where “Chief Justice Marshall explained that a corporation was an ‘invisible, intangible, and artificial being’ and ‘certainly not a citizen.’” (P. 979.) Deveaux required federal courts to look to the citizenship of a corporation’s shareholders when deciding whether diversity jurisdiction was permissible. When paired with a complete diversity requirement, however, that approach created a mess. The Court in Louisville, Cincinnati & Charles R. Co. v. Letson and Marshall v. Baltimore & Ohio Railroad Co. opted for pragmatism over historicism, allowing corporations to be treated as citizens for the purposes of diversity jurisdiction. Sohoni accordingly concludes: “Treating corporations as citizens in diversity can claim on its behalf a slew of pragmatic benefits. What it cannot claim is fidelity to original meaning.” (P. 982.)

Third, as a matter of due process under the Fifth and Fourteenth Amendments, what contacts must a defendant have with a state before a plaintiff can hale him into courts in that state? The doctrine turns on broad appeals to “fair play and substantial justice” rather than deep historicism. In some areas, the Court has expressly rejected history in favor of fairness and pragmatism. Shaffer v. Heitner refused to allow a court to attach a defendant’s property within a forum for claims unrelated to that property. Such attachment was “an ancient form without substantial modern justification,” and “continued acceptance” of it “would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant.” (Pp. 986-87.)

Collectively, these examples show that “rather than copying its content solely from evidence of original meaning, the law of civil procedure has drawn its substance from pragmatism and policy; from the impetus of changing times, technology, and philosophies; from values such as fairness; and from simple common sense.” (P. 992.) Procedural law’s nonoriginalism may “provide a particularly vivid example of how in the face of old enough reasons or good enough reasons, and in the absence of any political pushback one way or the other, claims to the primacy of original meaning simply are not very compelling.” (P. 992.)

Sohoni identifies evidence that the Court may soon confront, and perhaps close, the gap between originalism and constitutional civil procedure. Justice Thomas’s dissent in Liu v S.E.C. questioned the absence of an originalist foundation of disgorgement remedies. Justice Gorsuch’s concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court questioned the Court’s markedly non-originalist approach to personal jurisdiction. Parties and amici emphasize originalist arguments in Mallory v. Norfolk Southern Railway Co., a pending case about the constitutionality of a Pennsylvania statute that requires a corporation to consent to personal jurisdiction before doing business in the state.

Sohoni argues that this looming confrontation between doctrine and history may enrich debates about the efficacy and proper scope of originalism. The approach the Court takes in cases such as Mallory may offer lessons about: whether originalist arguments have the most force in the ideologically charged spaces that are aligned with the conservative legal movement; whether or when precedent and stare decisis are more compelling than originalism; and the degree to which originalism operates as a constraint on judicial discretion. When interpreting the due process clauses, for example, will originalism prevail when it serves to further subordinate the historically marginalized groups who had little public voice at the Founding, while non-originalist approaches reign when they better serve oligarchic ends? Time will tell. But we should take up Sohoni’s invitation to watch closely in our appeals to and appraisals of the Court.

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Cite as: Fred O. Smith, Jr., Originalism’s Procedural Puzzle, JOTWELL (March 10, 2023) (reviewing Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L.J. 941 (2023)), https://courtslaw.jotwell.com/originalisms-procedural-puzzle/.