Wednesday, November 16, 2016

Who Is Originalism For?

By Eric Segall

In the months after Justice Scalia passed away last February, there was much discussion here and elsewhere about the future of originalism. Of course, we didn't know then what we know now--that we have a President-elect who says (of course who knows) that he will nominate Justices in the mold of Justice Scalia. Thus, it appears originalism may be back on the agenda. Therefore, it may be a good time to start (or for some of us to continue) to ask the question, who is originalism really for?

When Judge Bork and a number of legal academics like Raul Berger and Lino Graglia started advocating for originalism in the 1970's and 1980's, they were reacting to what they perceived to be the excessive judicial activism of the Warren Court in cases like Roe, Miranda, and Baker v. Carr. Their originalism came with a heavy presumption in favor of legislation whereby in virtually all constitutional cases the plaintiff has the burden of demonstrating that the law violates either clear constitutional text or uncontested history behind the text. This theory is coherent, even if not necessarily persuasive, and if adopted in good faith by judges could dictate results in  most constitutional litigation. It is also clear that Bork, Graglia and Berger were writing for judges, lawyers and citizens, not tenure committees, historians or philosophers.

We will never know if Judge Bork would have actually implemented this type of deference as a Supreme Court Justice. What we do know is no modern Justice has embraced this philosophy. Although Scalia talked the talk before he became a Justice, and continued the rhetoric off the Court when he became a Justice, his votes in constitutional litigation did not come with deference to originalist sources. As I've written before, Justice Scalia (and Justice Thomas) frequently struck down laws where a deferential originalist would have had to uphold them. These broad areas of constitutional law include litigation over takings, affirmative action, commandeering, sovereign immunity, standing, speech as conduct, and commercial speech cases, among many others.

In response to my prior writings on this topic, several academic originalists, and several people who follow this Blog, have suggested that a "true" originalist could take the position that if originalist sources suggest striking down laws 51% to 49% then judges possibly should do so and that may have been Scalia's true "originalist" position. Of course, in gay rights and abortion cases, Scalia explicitly adopted a deferential stance and criticized his colleagues strongly for not doing the same so I don't think that position accurately describes Scalia's project. Moreover, the original originalists would never have accepted such a judicial posture and for good reasons. As I explain below, originalism without deference (the kind advocated by numerous so-called New Originalists) is absurd.

Imagine any number of of difficult modern cases, such as whether the President may assassinate American citizens who are clearly terrorists but without any judicial process, or whether women should have a constitutional right to terminate their pregnancies, or whether gays and lesbians have a legal right to marry. A coherent posture of a judge would be to say to the plaintiffs in all three cases that you have the burden of demonstrating that clear text or history supports your positions and since you can't show that, you lose. Another coherent position for judges would be that, since society changes dramatically, and neither clear text nor history forbids the plaintiffs winning, we judges will do what we think is best all things considered, and all three plaintiffs win. What is an incoherent position is to suggest that we are going to canvass originalist sources, try to figure out the best we can what the people living in 1787 or 1868 thought about the problem, and do what the "objective meaning" of the text was or what those people intended the words at issue to mean.

For example, the people who wrote or ratified the 14th Amendment had views about women that are completely taboo today (I hope). Women couldn't vote, were excluded from many professions, and were second-class citizens in many other ways under the law. The issue of abortion, in 1868 or today, whether one is pro-life or pro-choice, is wrapped up in balancing many aspects of a woman's individuality with the rights, if any, of the fetus. We don't know how people living in 1868 would balance those questions if they held our common assumptions about women, and there truly is no way to be 51% per cent sure or even 80% sure.

The same is true for same-sex marriage and Presidential Power. The very concept of a homosexual person (as opposed to homosexual conduct) barely existed in 1868, so how much valuable information could people living at that time offer us? Similarly, for better or worse, the nature of Executive Power, not to mention world conditions and technology, are so different today than in 1787 that the people living then could not possibly offer much guidance on the question of drone strike executions of American citizens thought by the President to be terrorists.

Judge Bork's originalism provided a rule for judges in such cases. The government wins absent clear evidence of unconstitutionality as shown by text or history. But few modern originalists, including Justices Scalia and Thomas, as well Professors Randy Barnett, Jack Balkin, and Will Baude (all self-styled originalists), take that position. Moreover, as far as I can tell, Professor Larry Solum's work does not offer this kind of deference either.

Solum and Barnett might respond that I am confusing the semantic meaning of the text with the legal meaning. They have argued that what the words meant to the people at the time is a very different question than how judges should apply those words to current modern problems, which requires what they call "constitutional construction." The problem is that as I, and many other people have observed, this dichotomy between semantic and legal meaning renders originalism indistinguishable from living constitutionalism. Moreover, if, as Randy argues, originalism often "runs out" in hard cases, then the question again becomes who is originalism for?

The sad answer, I think, is that originalism is a marketing device for judges and politicians (like the President-elect, Ted Cruz, and others) to use to mask personal judgments about what is best for society today. For scholars, it is a means of discussing constitutional law in a way that appears academic and theoretical but at the end of the day doesn't describe accurately how judges decide cases or likely ever will decide cases. I will have more to say about both of those claims in future blog posts, articles, and my book Originalism as Faith. But for now, it is enough to suggest that originalism without deference is absurd, and if I'm right that Supreme Court Justices (life-tenured government officials who have enormous power) will inevitably do what they think is best, as has been the case with Justice Scalia and Thomas, then we must ask seriously who is originalism for?


Sam Rickless said...

I read you as running a dilemma: either originalism is defined as "original expectations originalism", in which case it avoids the generality problem in many cases but delivers verdicts that are paleolithic, or it's defined as "original meaning originalism" (OMO), in which case it faces the generality problem, can be made to justify any result we like, and turns out to be indistinguishable from living constitutionalism (LC). A couple of thoughts about this.

1. OMO, as a guide for judges, might deliver verdicts that are indistinguishable from the verdicts delivered by LC: logically speaking, though, it doesn't follow from this that OMO=LC. According to LC, the *meaning* of the words of the constitution changes over time. Not so according to OMO. This is, from the point of view of semantics, important. Take the word "nauseous", which used to mean "nauseating" and now means "nauseated". According to OMO, if the constitution contained the word "nauseous", we should read and apply the word now in accordance with the meaning of "nauseating"; according to LC, we should read and apply the word now in accordance with the meaning of "nauseated". That's a big difference, even if it turns out that, contingently, everything that is nauseated is nauseating and vice-versa.

2. Most originalists claim to have ways of rendering original meaning more specific, in ways that enable OMO to avoid the sting of the generality problem. For example, original methods originalists (eg Ramsey and Rappaport) think that original meaning should be rendered more specific by using original methods. Scalia suggests using one of 537,479 canons of construction. I think that most of these ways are intellectually unacceptable, but that is something that needs argument.

Shag from Brookline said...

There are many more varieties of originalism than those identified by Sam. A recent article describes "Enduring Originalism." I recall an article some years back critical of originalism that identified by name scores of versions of originalism as originalism was evolving. I understand work is underway by linguists to track the original meaning of the Constitution and its Amendments. This would be digitalized such that with the press of keys one could determine the original meaning of the Constitution and its Amendments. Would this end disputes on the interpretation and/or construction of the Constitution and its Amendments? I think not.

Shag from Brookline said...

Over at Larry Solum's Legal Theory Blog there is a post on Eric's post. Solum provides an extensive editorialization critical of Eric's post. I await Eric's rejoinder. But I should point out that in Solum's response he alludes to the future of originalism with the upcoming Trump presidency and anticipated appointments of originalists to the Court. This points to the politicization of Originalism, which of course nurtured originalism in the first place. Trump is surely an original. But will Trump's "Make America Great Again" nurture originalism? Just when were those good old days?

Shag from Brookline said...

The Legal Theory Blog and the Originalism Blog do not accommodate comments to their posts. Each of these Blogs seems to "stalk" Eric Segall's posts , although the Originalism Blog has not as yet chimed in on Eric's current post. Solum and Ramsey of said Blogs, respectively, could comment here. But then their comments could be subject to others' comments, suggesting a degree of sensitivity. Versions of originalism are as varied as Christian religions. There is no universal originalism, as is obvious from posts at the Originalism Blog. While there may be disagreements among originalists in the various schools of originalism, they seem to coalesce when then is any challenge to any version of originalism, suggesting that originalism is a matter of faith.

Gaia1956 said...

michael spencer

Joe said...

"Originalism" is good for many people to make human choices in judging and claim they are "just following orders."

Personally, including looking at what guided the original committee charged with putting the Constitution in its final form, I think the original parties (purposely vague; as Shag notes, there are lots of way to phrase this) expected/intended/guess while looking at entrails, purposely left things open-ended, including on how they phrased the document, letting ongoing developments and knowledge fill in the details in a sort of common law like system.

What is clearly wrong, for instance, to warrant judicial review that strikes down popularly passed legislation? The author thought same sex marriage was particularly clear here as compared to other things people he agreed with on certain things felt was pretty obvious. The opinion was 5-4, even if some are "fine" with it.

Fred Raymond said...

What Shag says above:

"While there may be disagreements among originalists in the various schools of originalism, they seem to coalesce when there is any challenge to any version of originalism, suggesting that originalism is a matter of faith."

Since it is faith-based, I would only amend "schools" to "denominations" or "sects."

That's a keeper, Shag. You summed it all up.

Joe said...

I am guided by biblical (to reflect my background; others have their own documents) interpretation when thinking about how the Constitution is applied.

Some have lost their faith there though wary about their faith in the alternatives.

Shag from Brookline said...

Further with respect to Larry Solum's Legal Theory Blog critique of Eric's post, it closes with this:

"I look forward to reading Segall's book. It seems evident that he has a long row to hoe."

Is this a sort of pre-publication effort to critique a book Eric is working on? Perhaps originalists are savoring .. a long Roe to Wade? Just a short few weeks ago there was an anti-Trump movement by (some) originalists, who may now be turning that lemon into orangeade for originalism.