Lost in the Construction Zone

By Eric Segall

Last Friday, Mike posted an essay titled “How Determinate is Originalism in Practice?” He essentially argued that the decisions of Justices Scalia and Thomas suggest that originalism is less determinate than originalists contend because both Justices reached more conservative results than one would expect from a neutral application of the doctrine. Professor Larry Solum, a scholar associated with New Originalism, responded with a four-part series taking issue with many of the points raised in Mike's essay. Mike and I are both critics of originalism, although we do not agree on everything. Thus, this post speaks only for me. It is devoted solely to responding to the second part of Larry's response dealing with what he calls "public meaning and underdetermination." This aspect of Larry's response is important because it implicates the critique of many scholars that New Originalism is just living constitutionalism by another name (speaking of names, because I can't bring myself to call Mike "Dorf" I will refer to Professor Solum as "Larry" for the sake of parity. I hope he doesn't mind).

The two key differences between New Originalism and Old Originalism are 1) New Originalists emphasize that judges should search for the original meaning of the text, not the original intentions of the authors; and 2) the difference between “semantic and “legal” meaning. The "semantic" meaning of the Constitution's text is its normal communicative content and is the proper subject of constitutional interpretation. The legal effect of the text is sometimes different, and is the object of constitutional construction. Where the semantic and legal meaning clearly converge, judges must give effect to that meaning. Constitutional provisions such as the President must be 35, or every state is entitled to two senators, are examples where the semantic meaning and the legal meaning are one and the same. Virtually no one suggests judges shouldn't be bound by the original meaning of these kinds of clear constitutional provisions absent dire emergencies or absurd results (not even Judge Posner or myself).

Larry's response to Mike that is relevant to this essay centers around how much of constitutional law is "underdetermined" by the semantic meaning of the text or historical analysis of that text. Solum claims that Mike (and other critics of originalism) overstate the degree of indeterminacy. Larry says that there are only “a very few open-textured constitutional provisions” and “that the indeterminacy of the original public meaning of the constitutional text has been greatly exaggerated.”

This claim raises an empirical question, but one does not have to be a legal realist to suggest that, when talking about the universe of Supreme Court constitutional cases, or even appellate level constitutional cases, the amount of indeterminacy is quite large. Phrases like “freedom of speech”, “equal protection”, “due process”, “unreasonable search and seizure”, and “establishment of religion,” simply do not have clear semantic meanings, especially when they arise in modern controversies. One of the major gaps in Larry’s theories, and those of other New Originalists as well, is that they have failed to demonstrate that semantic meaning is relevant to a significant number of litigated constitutional law cases. In fact, they haven’t even tried.

Larry does say that “that some significant underdeterminacy exists.” When that occurs, judges must enter the “construction zone.” In that zone, Larry and other New Originalists concede that originalist sources will not be able to dictate results, and judges must bring their normative values to the case before them. 

Back in 2011, in a book-length debate with Professor Robert Bennett, Solum recognized the inevitable critique this construction zone concept would bring from non-originalists:

“What should an originalist say about decision making within the construction zone? It might be argued that the construction of [vague] provisions requires judges to rely on their own values or beliefs about political morality and justice. If this were the case, then it might follow that much of the originalists critique of living constitutionalism would lose its force…. If originalists allow judges to make law in the construction zone, it might be argued that the difference between originalists and living constitutionalism is only a matter of degree. Given the practical importance of the abstract, general and vague provisions [of the Constitution]… living constitutionalists might well claim that the originalist endorsement of the interpretation-construction distinction effectively concedes the most important constitutional questions to non-originalists.”

Larry responded to his own questions by setting forth three options. First,  in the construction zone, Originalists could advocate for great deference to laws passed by the political process-a Thayerian type model of judicial review. This is a coherent response (and one that I embrace), but very few New Originalists, and certainly not Justice Scalia or Thomas, espouse it. In any event, Larry has never adopted it, and neither has the Court for any serious length of time.

Another possibility is to apply what Larry called in 2011 a “principle” approach whereby judges “attempt to derive guiding purposes to search for the values that are immanent in the specific provisions and overall structure of the Constitution.” Similarly, in his recent response to Mike, Larry pointed to Randy Barnett’s and Evan Bernick’s emphasis on the search for the “spirit” of the constitutional text when judges are in the construction zone. 

In my blog post here, I demonstrated that this search for “spirit” is far too open-ended to distinguish the construction zone from living constitutionalism. The essence of my argument was that “the ‘spirit’ of most constitutional provisions that lead to constitutional litigation will be broad enough to justify virtually any result a judge or justice wants to reach.” I have not found any writing of Larry's to support the idea that constitutional interpretation based on “principle” or “spirit” leads to more determinacy than living constitutionalism. It takes much more than a summary statement to make that case.

The third option that Larry mentioned in 2011 to provide more determinacy in the construction zone is the “original methods originalism” of Professors Rappaport and McGinnis. They argue that judges today should only use those interpretative methods used at the time of constitutional ratification. This solution, however, hardly cures the indeterminacy problem. As Professor Kurt Lash has argued about original methods originalism:

The proper methods of constitutional interpretation were not only under-resolved at the time of the Founding, they were the subject of heated and on-going debate…. Different founders proposed different methods of constitutional construction, each reflecting a different normative theory of the new federal Constitution…. This dispute cannot be resolved by fiat application of interpretive methodology or recourse to an anachronistic reliance on the common law; it requires the application of normative theory. This is not the result of a temporary gap in our historical knowledge. It is history itself that tells us that originalism cannot go all the way down.

Larry's reply in Part II of his response to Mike simply does not rebut the critique of numerous scholars, such as Peter Smith, Steve Griffin, Tom Colby, and myself, that the New Originalism’s "semantic-legal" and "interpretation-construction" distinctions make this form of originalism indistinguishable from pluralistic theories of constitutional interpretation and living constitutionalism. In fairness, maybe Larry wasn't directly addressing this critique though his posts certainly raised the issue. Nevertheless, the stakes of this disagreement are high given the efforts by Justice Scalia and Thomas, as well numerous political officials, and a bevy of New Originalists (including Larry), to claim a more determinate approach to constitutional law than that proposed by scholars they claim embrace living constitutionalism (who are mostly left-of-center). But no New Originalist, and certainly not Larry, has applied their theory to enough actual constitutional law cases to support that claim.

As far back as 2011, in direct response to Larry, Professor Bennett wrote that “Solum assiduously avoids discussion of specific constitutional problems.” I have suggested the same in prior posts, and Larry's reply is usually along the lines that theory is hard and he's still working on his. That's fair, but I might humbly suggest that broad claims of how the theory affects practice should then wait until practice is actually explained. This failure to discuss on the ground constitutional issues is generally true for other leading New Originalists.

In light of the absence in the literature of New Originalists applying their theory to actual cases, and the voluminous literature suggesting the New Originalism is no more constraining than living constitutionalism, what Larry wrote this week rings somewhat hollow: "The normative justifications for originalism (legitimacy and the rule of law) will counsel methods of construction that minimize judicial discretion and forbid judges from deciding specific constitutional issues on the basis of the judge's ideological views and political preferences." 

Larry has not shown how his version of originalism will lessen the effect of ideological views on judicial decision-making. Until he sets forth a comprehensive account of how his theory applies to real-life litigated constitutional problems, or points to someone else who does, he cannot rebut the claims of many critics, including this author, that the New Originalism is simply living constitutionalism by another name, and certainly no more determinate.