Tuesday’s Sixth Circuit decision in OPAWL—Building AAPI Feminist Leadership v. Yost offers a welcome example of how constitutional originalism can be the antidote to muddled case law. In a per curiam opinion, the court correctly reversed a district court injunction that, on First Amendment grounds, would have blocked Ohio’s law preventing foreign nationals from influencing state elections through political contributions and ballot initiative spending.
But more interesting than the unsigned opinion is the concurring opinion by Judges Raymond Kethledge and Eric Murphy. They made a simple, but powerful, originalist point that assessing the Constitution’s original meaning would make the answer more straightforward than the Supreme Court’s strict-scrutiny case law. They explained, as lower courts must, why their conclusion was supported by the Court’s reigning framework of strict scrutiny cases involving various constitutional rights. But they also exposed how the strict scrutiny test has been applied inconsistently depending on whether the Court wants to uphold or strike down a particular law. As the judges noted:
Despite the test’s uniform requirements in theory, the Court has seemed to apply both a rigorous version and a watered-down version of strict scrutiny in practice. . . . When the Court has relied on that test to find a law unconstitutional, it has suggested that “strict-scrutiny review is ‘strict’ in theory but usually ‘fatal’ in fact.” And when the Court has refused to apply strict scrutiny for fear that the test would bar state actions long presumed constitutional, it has made similar statements: that strict scrutiny “is fatal in fact absent truly extraordinary circumstances.” But when the Court has upheld laws under strict scrutiny, it has made the opposite assertion: that “[s]trict scrutiny is not ‘strict in theory, but fatal in fact.’” [citations omitted]
The Court has similarly muddled the “compelling interest” part of the strict scrutiny test by “allow[ing] the government to identify this interest at a high level of generality” when upholding a law but not when it “finds that a law flunks strict scrutiny.” The judges explained similar double standards in how demanding the Court is on the evidence it requires the government to produce in defense of a law and in its treatment of “underinclusive” laws.
These analytical inconsistencies leave litigants guessing which version of strict scrutiny will apply. Judges in turn are required to make “free-wheeling policy judgments” that belong in legislative halls, not courtrooms. The concurrence identified the difficulty behind having to decide “whether we should apply the relaxed or rigorous version of strict scrutiny” but decided the case based on its resemblance to cases “in which the Court has applied the relaxed version . . . more than those in which it has applied the rigorous one . . . .”
The judges then brought in a basic originalist point that established why deciding this case did not have to be such a convoluted process. As an original matter, the application of the Fourteenth Amendment’s “Privileges or Immunities Clause is the right ground upon which to enforce the rights enumerated in the 1791 Constitution against the states,” not the Due Process Clause, which the Court has dubiously relied on for generations. That is a proposition embraced by nearly every Fourteenth Amendment scholar who explored it, by Justice Thomas, and most importantly by the amendment’s framers.
The “Privileges or Immunities Clause provides that no state ‘shall abridge the privileges or immunities of citizens of the United States,’” so the analytical difference is straightforward:
The term “citizens,” as used in that Clause, stands in contrast to the word “person” as used later in the Due Process and Equal Protection Clauses. Plainly, then, the Privileges or Immunities Clause bars the states from abridging the privileges or immunities only of “citizens.” And here the Ohio statute applies only to noncitizens. Hence that statute does not violate the Clause.
This originalist analysis cuts through pages of confused jurisprudence, and “unlike substantive due process,” the concurrence asserted, it “does not arrogate to the courts a power that has proven both legislative in character and utterly arbitrary in practice.”