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.