Constitutional Conversation with Mila Sohoni
On a daily basis, lawyers and judges consult and apply the rules of subject matter jurisdiction and personal jurisdiction. These doctrines—the workhorses of civil procedural law—ostensibly spring from the Constitution’s text, but their substance owes more to considerations of fairness, efficiency, and sound policy than it does to original meaning. Indeed, these doctrines are among the most openly and notoriously nonoriginalist doctrines in constitutional law. Curiously, the originalist movement has almost totally ignored this everyday terrain. That is beginning to change. Recent overtures by Supreme Court Justices suggest that originalists are now poised to advance into the field of civil procedure. Reorienting extant procedural doctrine around the polestar of original meaning could have dramatic effects: for example, it could oust corporations and D.C. citizens from suing or being sued in diversity while throwing into disarray the doctrines that govern the vast set of suits in which state and federal courts exercise personal jurisdiction over out-of-state defendants. In these and other respects, an originalist turn in procedure may have momentous consequences for our law.
This lecture will explore this emergent phenomenon of “procedural originalism”—its past, its present, and its prospects. Above all, it will explore what originalism’s belated turn to the domain of civil procedure reveals about the construction of the originalist agenda. A prominent charge levied against originalism is the claim that originalism is not an apolitical legal interpretive methodology but rather a tool for selectively inscribing into constitutional law the political goals of the conservative legal movement. What is striking about civil procedure is that an originalist remodeling of procedural law would call for some outcomes that are nonaligned with, or even sharply adverse to, the aims of key conservative movement constituencies. The future course of procedural originalism therefore promises to throw light on the contours of originalism’s constitutional politics and, ultimately, will offer a fresh test of the charge that originalism is a proxy for politics rather than a theory of law.