Monday, November 02, 2015

Originalism on the Ground

By Eric Segall

Over the last two weeks, Mike has engaged in a high-brow discussion with, among others, Professors Larry Solum, Mike Ramsey and Paul Horwitz, concerning the role originalism plays and should play in constitutional law. To varying degrees, the various essays raise deep and interesting philosophical questions about what it means for judges to accept or reject originalism as a theory of constitutional interpretation. For folks with a deep interest in the topic, Mike’s original essay and the various rejoinders and replies provide excellent material to ruminate on the academic topic of originalism.

But, in terms of actual constitutional litigation as practiced on the ground, I have a few questions for those who consider themselves to be originalists in any meaningful sense of the term. By "meaningful," I mean someone who believes originalism requires something more than specific constitutional phrases must be construed specifically while vague ones allow for "construction" over time.

1. Isn't it true that much current free speech doctrine, including but not limited to, the law of defamation, commercial speech, and campaign finance reform cannot be (and in any event was not) justified by resort to original meaning? Do you oppose cases like New York Times v. Sullivan, Citizens United, and Central Hudson?

 2. If your answer to number 1 is that the neither the original meaning nor the text of the First Amendment forbids the results in those cases, and therefore the Justices were justified in “constructing” the meaning of free speech (within broad parameters) in those cases, please explain how that method of constitutional interpretation differs from “living originalism” in any sense that matters for constitutional litigation. 

3. Virtually the entire Rehnquist Court’s “new federalism” jurisprudence in cases like Seminole Tribe, NY v. United States and Printz v. NY is inconsistent with both text and history. I demonstrated that point here: Do you oppose these cases?

      4. If your answer to number 3 is that general structural principles and "postulates" underlying the 10th and 11th Amendments support the cases mentioned in number 2, please explain how those “postulates” differ from “penumbras and emanations?”

      5. Why do we (academics) spend so much time trying to justify or criticize originalism when so many landmark Supreme Court cases ignore the doctrine almost completely? Here is a partial list:

a.       Bush v. Gore
b.      Korematsu v. United States
c.       Roe v. Wade, Planned Parenthood v. Casey
d.      Shelby County v. Holder
e.       All of the Court’s Affirmative Action Cases
f.        Most, maybe all, of the Court’s expressive conduct/speech cases
g.       Most, maybe all, of the Court’s gender discrimination cases

6. Do you agree or disagree that originalism played no or a marginal role in those cases?

7. Do you believe Jack Balkin, who wrote a book called “Living Originalism,” and who believes that Roe can be justified on an originalist basis, is really an Originalist? If your answer is yes, please explain. If you answer is no, any theories as to why he would call himself an "Originalist?" Mine has something to do with a Trojan horse.

8. My last three questions all revolve around this important passage from Larry’s response to Mike’s essay addressing Larry’s three questions:

“I believe that the best understanding of "originalism" is that it is a family of constitutional theories that is unified by agreement on two ideas.  The first of these ideas is the Fixation Thesis:  the communicative content (or linguistic meaning) of the constitutional text is fixed at the time each provision is framed and ratified.  The second idea is the Constraint Principle: constitutional actors should be constrained by the fixed communicative content of the text.  Different originalists affirm different versions of the constraint principle, but I believe that almost all originalists agree that the minimum level of constraint is constraint as consistency--constitutional actors may not act in a way that is inconsistent with communicative content of the text.”

I do not understand how either the Fixation Thesis or the Constraint Principle applies to constitutional provisions with hopelessly vague language and contested histories. I am thinking about bans on “unreasonable searches and seizures,” the “establishment of religion,” the denial of the “equal protection of the laws,” and “cruel and unusual punishments,” among many others. I would like to know how you would expect judges to, for example, be guided by either of these Principles when deciding whether lethal injections that cause X amount of pain we know about and possibly Y amount of pain we don’t know about, constitute “cruel and unusual punishment” or whether the Constitution extends habeas protections to places like Guantanamo Bay where the United States does not exercise formal sovereignty but does exercise complete control. I could give another 1000 examples. Is Larry writing for judges or someone else?”

9. Am I an originalist if I adopt the following position, first articulated in 1900 in the first ever law review article to use the phrase the “Living Constitution?”
"The separation of the law from the facts is a difficult but transcendently important task. For while denying in the most unqualified terms the notion that the Constitution is capable of a varying construction, we may often be swayed by the same arguments advanced in favor of that heresy, and even reach the same results, but in a perfectly legitimate way, simply by a careful discrimination between matters of law and fact. The law of the Constitution remains forever unchanging: the facts to which it must be applied are infinitely various."

In other words, if I concede that the meaning of the Constitution is “fixed” at the time of adoption, and that judges are bound by that meaning, but that the results in constitutional cases may/will change from time to time because the factual and social context constantly changes, so that what is “equal” or “unreasonable” or an “establishment” may also change, am I an “originalist,” under these two core principles?

10. If the answer to number 9 is yes, is there any difference for constitutional litigation between originalism and living constitutionalism? 


Shag from Brookline said...

And add Prof. Re at Prawfsblawg for late joining in on this constitutional scrum.

Prof. Solum is a follower of the New Originalism which addresses interpretation/construction, with the construction part coming into play when the meaning of the Constitution is not clear. (Construction is strongly disputed by old-school originalists McGinniss and Rappaport.) I posed a question for Solum in a comment at Mike's first post regarding the application of the "fixation thesis" to such construction. It is difficult enough applying the fixation thesis when the Constitution is clear in its meaning as the skills of professional linguists may be required (as opposed to "law office linguistics"). But it seems virtually impossible in the case of construction even for the most highly skilled linguists. Solum did not respond to my question. I did not expect him to at this Blog. But I wonder as to how Solum would respond.

Eric Segall said...

I think that is a great question and I have never heard a remotely persuasive response.

Unknown said...

I think that this kind of debate will keep going around and around until originalists and their opponents provide a clearer explication of what they mean by "meaning". There have been some attempts to make important distinctions (see, e.g., Greenberg and Litman), but ultimately the basic problem that contributors to this debate must face is that there is no agreement among originalists and their opponents about the meaning of "meaning". On some accounts of meaning, your questions, Eric, will receive positive answers; on other accounts of meaning, the answers will be negative.

Some originalists think that original meaning is determined by patterns of original application, so that if the term "X" was routinely applied by the framers only to members of the set {A, B, C, D}, then the extension of "X" (the set of things to which "X" *correctly* applies *now*) includes no more than {A, B, C, D}. On this view, "speech" does not refer to anything that the framers did not know or think about at the time of framing (e.g., campaign finance). Other originalists think that the extension of "X" is fixed by what the framers *would* have applied "X" to if various options of which they were unaware at the time had been brought to their attention (e.g., campaign finance, thermal imaging). Some originalists think that phrases such as "freedom of speech" and "equal protection of the laws" are irremediably vague: the original meaning of these phrases, they say, does not fix a determinate extension. For them, applying the First and Fourteenth Amendments to particular cases requires "construction", i.e., building a case for including (or excluding) this or that option from the phrase's extension, in a way that is consistent with its (vague) meaning. These originalists think that meaning constrains construction, but does not determine the results of construction. In practice, their views about how to apply vague provisions to particular cases might not differ much from the views of multimodal theorists (e.g., Berman) or living constitutionalists (e.g., Strauss). Some originalists (e.g., Balkin, perhaps Scalia) think that they can tell whether terms like "speech" are metonyms or synecdoches (more broadly, whether terms should be read literally or nonliterally). This may require them to address the distinction between semantics (what is said) and pragmatics (what is conveyed beyond what is said). Literally, of course, "speech" refers to the production of audible phonemes. Nonliterally, the extension of "speech" can be far broader.

The reason why originalists are such a motley crew (such that some will answer your questions affirmatively, and others will answer them negatively) is that the term "meaning" is susceptible of different interpretations. Until we attain greater clarity about this, progress is impossible. And, I suspect, the reason why insufficient progress has been made within the legal academy so far is that the answer to any question about the meaning of "meaning" requires much greater familiarity with the philosophy of language (including attention to syntax, semantics, and pragmatics) than the typical proponents and opponents of originalism currently possess. For example, only after we have attained this level of familiarity will it become clear what statements such as "the law of the Constitution remains forever unchanging" and "Seminole Tribe is inconsistent with the text" actually *mean*.

Joe said...

Reading the transcripts of the oral arguments in Brown v. Bd. & one or more justices noted the "living" nature of the Constitution while originalism was cited by more than one of the attorneys for the states. Both sides did rely on it somewhat - Thurgood Marshall, e.g., called segregation a type of "black code" and the negative reasons and understandings of segregation is schools originally were cited. However, the change in facts on the ground in respect to "equal protection" were also cited. See also, Justice Jackson's unpublished opinion.

I appreciate the third comment but the disagreements underline for me the silliness at some point. There are so many disputes on what "originalism." The method is supposed to (in the eyes of many who promote it) be best for purposes of restraint and objective determining of meaning but it's akin to trying to find the "meaning" of the Holy Writ. Two different people can quite honestly say A and non-A there.

Shag from Brookline said...

Over at the Originalism Blog Michael ("I'm not Ramsey") Rappaport chimes in on Mike's posts, focusing on the anti-originalism Jim Crow argument. It's easy to say in retrospect that if the Reconstruction Amendments had been properly applied, Jim Crow would have only survived as a bourbon (a harsh bourbon in my experience). But consider this "on the ground" for the many decades of non-alcoholic Jim Crow up to Brown in 1954 - and Jim Crow still has remnants politically.

Regarding Joe's point on "honestly" differing on "meaning," we also have to deal with the many Humpty-Dumpty views of "meaning." Originalism has political overtones too frequently.

Joe said...

One more thing from current reading -- this time regarding "Notorious RBG," the new biography on Ruth Bader Ginsburg. RBG herself argues the true spirit of the Constitution is honored with her view on gender equality. The book references a 1960s case regarding women on juries. An excerpt:

"The argument that the Fourteenth Amendment was not historically intended to require the states to make women eligible for jury service reflects a misconception of the function of the Constitution and this Court's obligation in interpreting it. The Constitution of the United States must be read as embodying general principles meant to govern society and the institutions of government as they evolve through time. It is therefore this Court's function to apply the Constitution as a living document to the legal cases and controversies of contemporary society. When such an application to the facts in this case is made, the conclusion is inescapable that the complete exclusion of women from jury service in Alabama is arbitrary."

But, these "general principles" can be appealed to by an "originalist," at least (if we take him at face value) by the likes of Prof. Balkin. See also, arguments such as this:

Shag from Brookline said...

Somewhat related to Joe's RBG quote is a post at the Originalism Blog by Michael ("I'm not Ramsey") Rappaport on whether, applying originalism, a woman can (could?) be President because of the use of "he" in the Constitution. Rappaport says this is a bogus attempt by non-originalists in challenging originalism. This deserves a "look on the ground" (a) pre-Reconstruction Amendments; (b) post-Reconstruction Amendments up to the 19th Amendment; and (c) post 18th Amendment. Imagine, someone who couldn't vote being elected President. This might suggest originalism could have supported a lady House Speaker not elected to the House and unable to vote up to the 19th century. Originalism needs a ground game rather looking into the heavens for meaning, although the 1st Amendment gives originalists protection in doing so.