(Updated with a Postscript below.)
For a period after Justice Scalia's death, when it appeared as though President Obama would be able to name Scalia's successor and that a Democratic president would fill future vacancies, various commentators wondered whether Scalia's chief jurisprudential legacy--originalism in constitutional adjudication and textualism in statutory adjudication--would have staying power. For example, Prof. Eric Posner predicted that originalism would fade. Last week's Senate confirmation of Justice Gorsuch, who was happy to embrace the originalist and textualist labels, ensures that there will continue to be a market for briefs that make arguments appealing to originalist justices; this real-world relevance will in turn likely give a boost to originalist scholarship.
By originalist scholarship I do not mean historical scholarship. Just about all jurists and scholars think that the history surrounding the adoption of authoritative legal texts (be they constitutional or statutory provisions) has some substantial relevance to its proper contemporary application. What makes originalism ostensibly distinct from other views is what Prof. Larry Solum has called the "fixation thesis"--the notion that the meaning of a provision is fixed at the moment of its enactment--and the "constraint thesis"--the notion that this fixed meaning constrains constitutional practice. One can concede both points to Solum and concede further that whether judges accept these theses affects how they write opinions justifying their rulings. However, for reasons similar to those elaborated on this blog last week by Prof. Eric Segall in describing a recent article by Prof. Peter Smith, I think that whether a judge accepts Solum's theses has little immediate practical impact. Nonetheless, the stakes in the debate over originalism are not as low as one might think, as I shall explain.
As Smith and Segall and others have argued, if a judge believes that the original meaning of a constitutional term is best understood at a high level of generality, then the constraint principle does little constraining. "Equal protection" is a good example. Most of the framers and ratifiers almost certainly thought that most forms of de jure sex discrimination were consistent with equal protection of the laws, but, as nearly all contemporary originalists would say, the framers' and ratifiers' concrete intentions and expectations do not define the meaning of the term equal protection. To the extent that we care about intentions and expectations as evidence of meaning, we care about semantic intentions and expectations. If, say, as some originalists argue, the original meaning of the Fourteenth Amendment was a prohibition on state laws redolent of caste distinctions, then sex discrimination is presumptively invalid today, because we now recognize, as our nineteenth century forebears did not, that sex-based distinctions generally are caste-like distinctions.
Thus, where a "living Constitutionalist" might say that the meaning of equal protection evolved between 1868, when the Fourteenth Amendment was enacted, and 1973, when the Supreme Court decided Frontiero v. Richardson, a semantic originalist would say that the meaning of the Fourteenth Amendment was constant all along. In this example, Solum's constraint principle would constrain the rhetoric of a modern sex discrimination case, but it would not constrain the outcome. Both originalists and living constitutionalists who think that sex discrimination violates contemporary notions of equality would treat such discrimination as presumptively invalid.
That is not to say that there cannot be cases in which the choice between accepting Solum's two theses and rejecting them makes a difference. But it is to say that in the cases that are most divisive--which involve constitutional provisions that are naturally read at a high level of generality--the choice will not be decisive.
One might, therefore, wonder why anyone cares about whether semantic originalism or living constitutionalism is the better approach, or whether, as Prof. Jack Balkin has argued at length, they are really the same thing, what he calls Living Originalism in a book by that name. Put differently, what are the stakes of the debate over originalism?
To my mind, the originalism debate implicates three concerns.
1) Academic pride. Last week, Prof. Mary Bilder published an op-ed in the Boston Globe in which she explained why, in her view, originalism makes little sense. To oversimplify an argument that Bilder already had to condense to make it accessible to the general public, the framers were largely in the dark about how the government would work and thus expected future generations to work things out for themselves; originalism thus asks the impossible.
In response, Solum posed a series of questions. Even as he noted his respect for Bilder as a legal historian, he implied that she had mischaracterized contemporary originalism, because, while the indeterminacy of the framers' expectations might be a problem for proponents of original intent, it is not (in Solum's view) a problem for semantic originalism. Prof. John McGinnis posed his own objections. Disavowing an intention "to pile on," Prof. Mike Rappaport then piled on.
Bilder wrote a short reply that did not directly address Solum's (or the others') questions that was more in the nature of explaining that as a legal historian she is engaged in a different enterprise from the theorists. Meanwhile, in a post titled "Touchy Originalists," Prof. Brian Leiter characterized Solum's initial questions for Bilder as "almost comical overreactions" to an op-ed. Solum then responded to what he called Leiter's "illuminating and critical remarks."
What is going on here? It's tempting to answer with the punchline to the old joke: "Why are academic fights so heated? Because the stakes are so low." But that's not really right. The participants in this debate are personally respectful of each other for the most part. And unlike a fight over, say, who gets the faculty office closer to the coffee machine, this does not seem like a petty squabble. It matters a great deal--at least to the originalists.
But again, if, as I and others suspect, semantic originalism provides very little in the way of constraint on judges, why should the semantic originalists care? One possibility is that they disagree. They might think that Solum's two theses do a lot of work.
A second possibility (which is not mutually inconsistent with the first) is that the originalists are understandably invested in not being mischaracterized. The sort of person who becomes a scholar cares about ideas even when they have little practical significance. (I include myself in that description.) Although I am ultimately on the other side of this debate, I empathize with the semantic originalists. For years they have been responding to critiques of concrete-expectations-and-intentions originalism by developing their theory of semantic originalism. Thus I understand that they would be frustrated by seeing (what they perceive as) critiques of concrete-expectations-and-intentions originalism packaged as though they were critiques of semantic originalism.
2) Bait and switch. The fact that originalists and living constitutionalists often reach the same outcomes in concrete cases does not necessarily mean that the practical stakes are low, because even as, in academic circles concrete-expectations-and-intentions originalism has given way to semantic originalism in the last three-plus decades, in public debate originalism means concrete-expectations-and-intentions originalism. I will cheerily concede that the academics who propound semantic originalism thereby intend only to work out what they regard as the best (or what many of them think is the only legitimate) approach to constitutional interpretation and construction, without any regard for the political consequences. But even if unwittingly, in doing so the academics enable concrete-expectations-and-intentions originalism--which has a conservative, even reactionary, bias--to flourish.
I made this point at length in a 2012 essay in the Harvard Law Review, in which I reviewed Balkin's Living Originalism and Prof. David Strauss's The Living Constitution. Here is a small sample of what I wrote there:
Widespread acceptance of Balkin’s views would allow conservatives to say that even liberals now accept originalism but then turn around and define originalism narrowly. Balkin and other leading “new” originalists like Professors Randy Barnett, Lawrence Solum, and Keith Whittington make originalism respectable by answering objections leveled at “expectations-based originalism” — but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers’ and ratifiers’ expected applications in considering concrete cases.Thus, although the scholars would never say that there can be no Fourteenth Amendment right to abortion or same-sex marriage simply in virtue of the fact that most members of the Reconstruction Congress and the general public in 1868 thought there was no such right, politicians and justices who, during their confirmation hearings talk the talk of semantic originalism, make just such academically discredited arguments in reliance on the framers' and ratifiers' concrete expectations and intentions.
The stakes are high because academic originalism--even if through no fault of academic originalists--legitimates reactionary jurisprudence.
3) Judicial Candor. Judge Posner's concurrence in last week's en banc 7th Circuit ruling in Lively v. Ivy Tech Community College illustrates a third consideration that the debate over originalism implicates: judicial candor. Judge Wood's majority opinion concludes that discrimination "because of . . . sex" as that phrase is used in Title VII encompasses discrimination on the basis of sexual orientation, notwithstanding the fact that this conclusion likely would have surprised the Congress that enacted Title VII in 1964.
Relying on Justice Scalia's opinion for a unanimous Court in Oncale v. Sundowner Offshore Services, Inc.--which found that male-on-male sexual harassment could amount to sex discrimination in violation of Title VII--Judge Wood's opinion sounds in textualism, which for present purposes we may think of as closely analogous to originalism in constitutional cases. (I recognize that the arguments for textualism and originalism differ somewhat. E.g., Prof. John Manning has argued that textualism can be best justified as a nondelegation doctrine, which is an argument within constitutional law, not an argument about how the Constitution should be interpreted and construed, in the way that arguments for originalism are. This difference is not relevant to the point I am making here.)
Although Judge Posner concurs in Judge Wood's opinion in Lively, he writes separately "to explore an alternative approach that may be more straightforward." He suggests that it would be simpler and more honest simply to say that the meaning of discrimination on the basis of sex changed between 1964 and 2017, chiefly through changed social values. He argues that when courts reach results that would have startled the lawmakers whose enactments they construe, the courts may be legitimately "giving a fresh meaning to" the relevant legal provision.
Because Judge Posner reaches the same result as Judge Wood (and, as noted above, even concurs in her opinion), his concurrence might be thought to illustrate how low the stakes are in the debate between semantic originalism (or textualism) and living constitutionalism (or dynamic statutory interpretation). But I think that would be a mistaken inference.
The practical stakes here are high. The closest any senator came to laying a glove on then-Judge Gorsuch during his confirmation hearing was when Senator Franken questioned him about the "frozen trucker" case. A view that openly admits that judges have considerable discretion to reach a sensible result even when, at first glance, the language of a statute (or constitutional provision) cuts against that result, gives judges less room to say "the law made me do it" and thus to evade responsibility for their rulings.
For at least the last two decades, Judge Posner's chief academic objective has been to promote legal realism as against legal formalism (as I explored here and as is further evident in Prof. Segall's description of his remarks at a recent conference). Originalism and textualism are brands of formalism, even when used flexibly to produce results that are indistinguishable from living constitutionalism and dynamic statutory interpretation. Judge Posner's noble goal of demystifying the law (which was always a main aim of legal realism) seeks to dislodge formalism and thus to undercut the latter's reactionary tendencies. Those are some pretty high stakes.
Postscript: Prof. Solum has posted a thoughtful response to the foregoing with a couple of points that warrant a brief reply.
1) Prof. Solum notes that I use the term "semantic originalism" (which I borrowed from an earlier paper of his but which also captures a position the late Ronald Dworkin espoused) synonymously with "original public meaning originalism" but that the latter may be broader insofar as "semantics alone" do not necessarily determine the communicative content of a constitutional provision. I'm happy to regard that as a friendly amendment. Readers should feel free to substitute "original public meaning originalism" for "semantic originalism" in the foregoing.
2) Prof. Solum cites another post of his to explain why, in his view, originalism does not have a levels-of-generality problem. To be clear, my post above notes that Segall and Smith argue that originalism has a levels-of-generality problem but I don't endorse that view. I say only that if an originalist judge concludes that the best (original) reading of a constitutional provision--equal protection, say, or freedom of speech--is at a high level of generality, then original meaning does not do much constraining. In Solum's terms, then, the original meaning would be "underdeterminate." That underdeterminacy is what allows (although the post of Solum's just linked says does not require) orginalism to end up looking like living constitutionalism.