Tuesday, March 22, 2016

"Originalism as Faith": My Response to Professor Solum

By Eric Segall

I recently placed on SSRN an essay that is forthcoming in the Cornell Law Review on Line titled “Originalism as Faith.” Professor Larry Solum responded to the piece on his Legal Theory Blog, and suggested I made three “mistakes” about his views.

My essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism." My main thesis is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions.

Professor Solum says that I should not have referred to him as a “moderate” as he keeps his political views to himself. He is correct. I made an error, I own it, and I have apologized to him.

Professor Solum also takes issue with my statement that "Other New Originalists such as Randy Barnett and Lawrence Solum agree with this notion that the meaning of vague constitutional provisions may evolve over time as facts and circumstances also change." Professor Solum responds that his “view is that the meaning of every constitutional provision, including but not limited to the vague, open-textured, and irreducibly ambiguous constitutional provisions, is fixed at the time each provision is framed and ratified.” Thus, I mistakenly characterized his views.

But, Professor Solum also says that “although meaning is fixed, applications of meaning to fact does change--necessarily so, since facts themselves change over time.” My point throughout the piece, indeed a point I have made repeatedly on this blog, is that judges only care about the “applications of meaning to fact,” and thus if results in cases change over time because facts and context change, where text does not, and one views that as permissible, then there is no meaningful difference between “living constitutionalism” and “originalism.”

This point is furthered by my concession in the essay that I am, like Professor Baude, writing for judges and lawyers, not philosophers. For the actual practice of law, there is not a dime's worth of difference between a judge concluding that the meaning of a provision has changed or concluding that the application of that meaning has changed. As I wrote in 1998, the very first person to ever use the phrase the "living constitution" in what I believe is the first serious scholarly effort to discuss original meaning in constitutional litigation (the article was written in 1900), said the following:
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.
I think this is an accurate description of how the Supreme Court decides cases, I think it is essentially the same description as Professor Solum's, and I think it shows that in real cases litigated in real courts, originalism and living constitutionlism end up in the same place.

Professor Solum’s third objection to my piece is to my statement that “apparently, Randy Barnett’s and Lawrence Solum’s “New Originalism” and Professor Baude’s “inclusive originalism,” allow Supreme Court Justices to permit legislatures to ignore clear constitutional commands, and clear original expectations about those demands, if modern circumstances so require."  Professor Solum responds that “this is not my view, and Segall provides no citation in support of this assertion.  My view, expressed on multiple occasions and defended in depth in a work-in-progress, 'The Constraint Principle,' is that constitutional actors, including legislatures and the Justices of the Supreme Court, should not act in ways that are inconsistent with the communicative content of the constitutional text.”

I will not argue with Professor Solum’s description of his own views other than to suggest that, to the best of my knowledge, he has not described with any specificity constitutional provisions that express “communicative content” that he believes would actually bind judges in real life constitutional cases without regard to changed “applications.” Lawyers and judges don’t have a strong stake in hypothetical “clear meanings." Professor Solum, however, may be writing for a different audience.

Finally, Professor Solum also says the following: “Professor Baude can speak for himself, but my sense is that Segall's representations of Baude's views should not be taken on face value and that readers should consult Baude's article and compare his position to Segall's representations of that position.”

I agree people should read both pieces (I sent mine to Professor Baude months ago), but the implication or "sense" that I did not fairly represent his views is false. Of course, reasonable people can disagree about my assessment of Baude’s views.

In the interests of collegiality, and without confessing error on any point other than my characterization of his views as “moderate”, I have deleted all but one reference to Professor Solum in my essay.