By Eric Segall
I have been writing, reading, teaching and talking about originalism since 1995. I try to keep up with the literature (a daunting task) but that perseverance can pay great dividends as it did this week when reading Professor Peter Smith's new article "Originalism and Level of Generality." Smith provides a wonderful explanation of just how far most contemporary academic originalists have strayed from a theory separate from "living constitutionalism," while also pointing out how inconsistent Justices Scalia and Thomas have been in their selective use of historical reasoning. While others including Mike and I have also told a similar story, Professor Smith has done an excellent job recounting it and bringing it up to date. I have never met Professor Smith but anyone interested in the current debates over originalism should read this piece.
Professor Smith begins with an argument well known to constitutional theorists: the resolution of constitutional cases requires judges to select what level of generality to use to interpret the Constitution's open-ended phrases. He points out that in cases involving bans on same-sex marriage and the 14th Amendment, for example, we could ask the following questions (among many others):
1) How would the people who ratified/voted for the 14th Amendment have answered the question whether bans on same-sex marriage violate the clause?'
2) Is the meaning of the 14th Amendment to mandate "equality?"
3) Is the meaning of the 14th Amendment to prohibit "caste"-like legislation?
Justice Kennedy in Obergefell asked a combination of questions 2 and 3 while Justice Scalia in dissent in that case asked question 1. Which level of generality the decider selects will decide the case, and that is true for many constitutional questions. For example, one could ask whether the folks in 1868 thought that the Fourteenth Amendment prohibited abortion laws or, asked another way, did the "objective meaning" of the Amendment in 1868 have anything to do with abortion? The answers to both questions are clearly no. But one could also ask whether the meaning of the Amendment at the time protected personal autonomy with regard to fundamental issues of family and child rearing? If that was the meaning of the Clause, then it could easily be applied to abortion laws today.
The essential point is that a sincere originalist method can lead to narrow or broad levels of generalities, and therefore originalists can reach just about any result in any case involving the open-ended provisions of the Constitution. Moreover, there is no way to privilege such a choice separate from one's views about the appropriate role of the Court in our constitutional scheme. As Mike (along with Professor Tribe) wrote long ago: "The selection of a level of generality necessarily involves value
Professor Smith then recounts how the original originalists like Raul Berger and Lino Graglia advocated for a deferential originalism employing the most narrow level of generality available. Unless the framers of the constitutional provision at issue would have deemed a challenged law impermissible, judges need to defer to the political branches, whether the issue is abortion, segregation or corporate spending as speech. As I've argued, this method has pros and cons but it is based on a coherent theory of constitutional interpretation. In the words of Professor Smith, the original originalists thought "it was simply implausible to believe that the framers intended to authorize unelected judges to find, in the Constitution's vague and open-ended provisions, specific rights not explicitly authorized in the text."
The major problem facing these original theorists was that it meant Brown v. Education was wrongly decided, and politically, that became a non-starter. Thus, Judge Bork eventually talked about how the Fourteenth Amendment was about racial equality writ large, not segregated schools, Scalia eventually agreed, and we were off to the races. After all, the Equal Protection Clause says nothing about race specifically and if equality is the norm, then women, gays and lesbians, and for that matter any identifiable group can make strong arguments under the Clause (not that Scalia and Bork ever admitted that truth).
The best part of Professor Smith's article is how he explains the transition from this deference-based model of originalism to the "construction zone" model currently held by folks like Randy Barnett, Larry Solum, and Ilya Somin, among others. This model, which is based on the assumption that originalism requires that vague and open-ended constitutional provisions must be interpreted pursuant to broad levels of generality, leads to unconstrained judicial decision-making that is indistinguishable from living constitutionalism. Professor Smith smartly points out that it was this new Originalism method of constitutional interpretation that nominee Elena Kagan was referring to during her confirmation hearings when she she said "we are all originalists." As Smith says, she could just as easily have said, "we are all non-originalists."
There is much more to this fine article. I highly recommend it to anyone interested in the originalism debates.