Saturday, November 07, 2015

Originalism on the Ground Part II

By Eric Segall

In my essay last week, “Originalism on the Ground,” I asked people who consider themselves “meaningful originalists” to respond to a series of questions. Michael Ramsey kindly posted on the Originalism Blog thoughtful answers to some of them. I can’t address all of Mike’s points here but would like to address a few of the major ones.

I wrote in my piece that most Supreme Court cases and doctrine don't find much support in originalism, to which Mike responded that “I don't see why this is a problem for originalism.  The originalist project, at least for many people, isn't descriptive; it seeks to change the way the Court and the legal culture think about judicial decision-making.”

That is a fair response as long as people who believe that originalism is the preferred method of constitutional interpretation advocate an approach that is different from the Court’s current non-originalist doctrine. Judge Bork would fall into that category as would the younger Michael McConnell because they combined their originalism with a strong presumption against the Court striking down the actions of other political officials. Most of the New Originalists, however, reject that presumption (Mike might be an exception). When we are in Larry Solum’s, Jack Balkin’s and Randy Barnett’s “construction zone,” we are dealing with a method of constitutional intepretation that in large part replicates how the Court currently decides constitutional cases. Other self-styled originalists like Will Baude and Steve Sachs expressly claim that some form of originalism is already deeply embedded in the law despite the many changes in most litigated areas of constitutional law. These calls for the Court to use the label “originalism” to describe a method of interpretation that is anything but that is a bit mystifying.

In response to my argument that originalism simply can’t help us resolve most contemporary contested constitutional questions (such as the validity of lethal injections or whether the Constitution applies to Guantanamo Bay), Mike offers three responses. First he agrees with me that if the relevant litigated “provisions have hopelessly vague language and [hopelessly] contested histories," then, in his words, “judges lack authority to intervene against the political branches.” I am glad Mike agrees with this but, as I said, most modern day “originalists”--and this group certainly includes Scalia, Thomas, Solum, Barnett and Balkin--do not.

Mike’s second and third responses are similar. He argues that sometimes “constitutional language and history is not hopelessly vague and contested (or at least it is not … as to some controversies and applications)…. The fact that original meaning doesn't supply an answer in all cases is not a reason to ignore it when it does supply an answer.”

Similarly, he disagrees with me about the extent to which originalism is unhelpful because “the difficulties of reaching originalist answers are often overstated.” He believes careful historical research and possibly employing interpretative techniques consistent with original meaning can be helpful across a range of constitutional questions."

These objections are important and require much greater treatment than I can provide here. For now, my responses are that first, expecting Supreme Court Justices or their clerks to conduct careful historical analysis (as opposed to law office history) is something of a fool’s errand. We have little data that this is possible and much that it is not.

Second, to the extent that Mike thinks that original meaning can provide helpful answers to modern questions, he needs to address the difficult issue of applying fixed original meaning to new facts. As Justice Scalia said in Minnesota v. Dickerson, the Founders might not have accepted the “indignity” of being frisked by the police pursuant to arrest (as allowed by Terry v. Ohio), but because guns have become much smaller and more powerful since then, what is a “reasonable” search may have changed. Similarly, in Citizens United, Justice Scalia said that even if the Founders would have believed for-profit-corporations had no free speech rights beyond those affirmatively granted by the state, the nature of corporations has changed so dramatically that a different result may be required today.

But, if what is “reasonable” changes or how we view corporations changes as society does, why not “liberty,” “marriage,” and “sovereignty,” etc? But once that move is allowed, then we have to inquire how original meaning, assuming it is ascertainable, applies to changed facts and new circumstances. And, once judges or scholars cross that great divide, originalism falls into itself, and originalism and the living Constitution become indistinguishable.

The moves made by Scalia in Dickerson and Citizens United demonstrate an important normative point about the entire originalist enterprise. It is simply never enough to ascertain original meaning in the abstract. That is a job for historians, not judges. In litigation, the original meaning must be derived in some factual context. But, that context shifts inevitably over the years, which is why we have disputed cases.

Applying law to shifting facts is always (absent a strong presumption of constitutionality) a current enterprise. It is impossible to ask the people of 1787 what they would have meant had they known, for example, how corporations or guns would change. So, at the end of the day, originalism is fundamentally unhelpful unless the facts have not changed (extremely unlikely) or a strong presumption against finding political decisions unconstitutional is embraced by judges. But, that presumption is missing from most contemporary originalist scholars. And, because of the subjective nature of the entire enterprise of recreating past meaning, without that presumption, originalism is living constitutionalism under another, and much less transparent, label.


Shag from Brookline said...

In my retirement from active law practice, I check out several legal blogs on a daily basis. One such blog is the Originalism Blog. There seem to be so many variations of originalism, it's like religion with numerous sects particularly Christian with which I am most familiar. The posts at the Originalism Blog demonstrate the differing originalisms, with some serious intra-mural infighting. But, as if originalism is an article of (legal) faith, even originalists who vehemently disagree with each other on their versions of originalism, all originalists seem to band in solidarity when there is a challenge from non-originalists. Will Rogers is remembered for his "I am not a member of any organized political party. I am a Democrat." Non-originalists are not organized in the sense that originalists are in the legal community. Perhaps Jack Balkin is a bridge between the two groups. (I am a great fan of Jack whose "Living Originalism" I have described elsewhere as "cross-dressing originalism.") In any event, perhaps it is time for a "Non-Originalism Blog," one that permits comments from both sides.

Anonymous said...

I sort of agree with Eric. I would phrase it differently. I would not say that orginalism collapses into living constitutionalism. That goes too far. It is essentially to assert, as Eric does later assert, that Orginalism is a rhetorical point and and not a substantive one. I think that is error.

Rather, the better conclusion to draw is that Orginalism doesn't have anything substantive to offer the current legal profession as a legal theory. As time moves on and culture and technology changes the range of cases that can be decided on orginalist grounds becomes fewer and fewer and that eventually orginalism becomes nothing but a plea for judicial restraint.

If this is so two point emerge. The first is whether we are at that stage today? I don't think so. I do think there are cases which can be meaningfully decided on Orginalist grounds (which is not to say they are being decided that way). Second, and most importantly, this does not mean that Orginalism as a theory is not worth developing. The reason why this is so should be obvious. Imagine that the USA were to undergo a revolution ten years from now or a major constitutional convention. If that were to happen then Orginalism would all of a sudden gain new salience--because that new Constitution would now becomes the new and very immediate backdrop for orginalism and Eric's complaint about fact patterns goes away in a puff of smoke.

In other words, the fact that orginalism is less helpful the further we move away in time from the original documents IS a weakness of orginalism but that weakness does not mean that orginalism by necessity collapses into living constuitionalism.

Eric Segall said...

I agree with much of this. One point in dispute. Even if we are interpreting a document written last week, if the issue was not anticipated, then, as Judge Posner just said in Chicago to about 100 skeptical law profs, judges still have to create an answer. This happens with new statutes all the time. Judging is usually creating, not interpreting. And, of course, with a 1787 document, it is virtually always creating.

Shag from Brookline said...

The Constitution of 1787 did not include a provision specifically addressing how its provisions were to be interpreted or construed. I'm not aware that this was discussed in the Convention proceedings. Bodies of law up to that time had developed rules on the interpretation and construction of certain legal documents, such as contracts, wills, etc, often by means of common law with changes over time. While there were constitutions of some of the 13 original states in existence in 1787, the 1787 Constitution with a fairly strong central government was not that common at the time. So, is it clear that the rules of interpretation and construction of contracts, wills, etc, would apply to the Constitution? From my readings, some, perhaps many originalists believe this. But the originalism that developed in the 1970s did not exactly follow the 1787 laws on the interpretation and construction of contracts, wills, etc. Originalism has evolved to the current (but for how long?) public meaning at the time of enactment with the New Originalism's interpretation/construction methods. But whose public? Not women, not children, not slaves, not the Native Americans for much of the time the Constitution as amended has been in existence. What constitutes originalism has yet to be settled, if ever it will, as it continues to evolve.

But let's follow the Constitution on the ground after it come into effect. Was the Constitution (and Amendments) interpreted/construed in the manner of originalism of any of its recent versions, with consistency? It seems that in the early days of the Constitution and also particularly the Reconstruction Amendments there were significant disagreements by the public (at least the public consisting of propertied adult white men) on such interpretation/construction. Some originalists will go through acrobatics to try to demonstrate that originalism was well in place before the 1970s.

James posits:

"Imagine that the USA were to undergo a revolution ten years from now or a major constitutional convention."

I imagine that originalists at that time may seek a specific provision in a new constitution that it be interpreted/construed on the basis of originalism (but which version?). I have seen examples proposed of such a provision. I imagine non-originalists might provide examples of situations under the present Constitution (as amended, of course) to point out the difficulties of framers anticipating future situations that might arise. Some would argue that the amendment process would be available for this purpose. This might be countered by the difficulties of the amendment process (if similar to the current Article V). And this would be only a part of the back and forth at an imagined convention. The issues that currently cannot be resolved between originalists and non-originalists would be part of the convention discussions. So maybe the answer is to come up with a detailed code instead of a constitution. No, I don't think it is a given that a new constitution would resolve these issues due to " ... the new and very immediate backdrop for originalism ...." Perhaps someone can suggest an originalism clause to consider for a new constitution - or via an Article V Amendment for our current Constitution.

Joe said...
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Joe said...

"orginalism becomes nothing but a plea for judicial restraint"

If that is the aim, many of those who use it are failing unless "judicial restraint" means "broadly overturning precedent and federal/state legislation." The flexible and opaque nature of originalism in practice does not restrain by itself more than various other techniques. In fact, the "my ancestors are forcing me" possibility here can lead to less restraint. Restraining isn't how I'd label Scalia, Thomas et. al. here putting aside the selective applications noting in the OP.

The current breed of originalists (reading the transcripts of the first two Brown v. Bd. oral arguments, edited by Lawrence Friedman, suggests it is not just a 1980s invention though maybe it favors conservatives of all eras) are doing fairly well for themselves though since their ideology continues to get so much attention as shown by multiple posts on this blog alone. I personally don't think it deserves that much respect though given who is in control of the courts, I understand the discussion.

Anyway, we had a range of amendments that were passed in the 20th Century, but there are less subject to originalist discussions. One interesting case was Granhold v. Heald, that dealt with the 21st Amendment. Note how Scalia and Thomas split & Stevens had a "I was there" moment. Another interesting possibility is the 19A -- in Adkins v. Children's Hospital this was used to oppose a minimum wage law for women. It argued women now were more equal in position in the public sector. Some feminists use a similar argument. And, of course, a few years after the 14A, the Supreme Court split 5-4 on the meaning of the amendment.

Anonymous said...


I see Posner's comment (as you related it) as nothing but word games. In the field of Biblical translation there are two camps. One camp argues that all translations by definition require a degree of interpretation because no two languages express meaning identically. Let's call this group "wordists". The other camp argues that literal translations are possible and that those in the first camp are in league with the devil. Let's call this group "semanticists".

I don't understand most Orginalists to be semantic orginalists. A sound orginalist would argue that there isn't any meaningful difference between "creating" and "interpretation" because just like translation every act of interpretation contains an element of creation. If there are differences, they are differences in degree and not of kind.

No, I think that a sound orginalist response to Ponser would be that he frames the issues wrongly. The right way to frame the issue is how closely the creation/interpretation hews to the original intent of the law. The poster Joe gets at this point when they talk about Steven's "I was there" moment. It is simply otiose to expect that as a theory Orginalism requires two different Orginalists to arrive at the same conclusion.

In my view the only meaningful difference between "living constitutionalism" and "orginalism" is the respect each pays to various epistemological sources. Those in the former tend to the present or the future and while orginalists bend toward the past. And the word choice of respect here is intentional and not accidental. Respect does not mean a normative directed outcome in particular cases.


I wrote "plea" intentionally.