Thursday, May 10, 2018

Just the Facts Originalism: No Surprise Here

By Eric Segall 

Professor Larry Solum just posted an article on SSRN titled “Surprising Originalism.” On Twitter, Solum invited comments. Here are mine.

           In this piece, which was the basis of a lecture at the University of Akron, Solum repeats much of what he has said before about originalism and claims that much of the essay might surprise those not closely following recent scholarly debates over originalism. The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism.


Solum claims that originalism is based on the following two ideas: “(1) the meaning of the constitutional text was fixed at the time each provision was framed and ratified, and (2) courts and officials should be bound by that fixed meaning.” Solum also details the now well-recognized move by originalists from original intentions to original public meaning, and claims that the search for that meaning depends heavily on context, not just the literal meaning of the words. Most importantly, Solum argues, like many (though certainly not all) contemporary originalists, that today’s judges are bound by the original meaning of the constitutional text but not how the public at the time thought that meaning would be applied to specific cases. He says the following:

The meaning of a legal text is one thing. The facts to which that text applies is quite another. Originalism requires that we apply the original public meaning of the constitutional text to the facts as they exist today given current understandings. Let me say that another way: originalism rejects the idea that our view of the facts to which the constitution applies should be frozen in time by the beliefs of the framers about circumstances that no longer exist.

Solum applies these ideas to several legal questions. First, he talks about Bradwell v. Illinois, decided in 1873, which uphold Illinois’ ban on women practicing law. On the one hand, Solum claims that the original meaning of the Privileges or Immunities Clause should have led the Justices to strike down that law. On the other hand, he concedes “the Justices (like most male Americans at the time) believed that women lacked the intellectual capacity to practice law. But that is a belief about facts and not about original meaning! Originalists believe that the original meaning of the constitutional text is fixed and that it binds us, but they do not believe that the framers’ beliefs about facts are binding: that would be just plain silly.”

This separation of what the constitutional text meant in the abstract at ratification from how the people thought that text would be applied may or may not make sense but it transforms Solum’s brand of originalism to living constitutionalism.  This is so because the constitutional phrases that lead to litigation are vague and do not admit of a single meaning (unlike specific provisions such as the President must be 35). The concepts of freedom of speech, establishment of religion, equal protection of the laws and privileges or immunities, among many other broad principles, cannot by themselves answer hard cases about their applications. If judges are not bound by what the people living at the time thought these phrases meant as applied to concrete issues, and judges can update these aspirations with today’s factual realities and values, then judges are in no uncertain terms updating the meaning of those phrases. Solum thinks he can avoid this obvious consequence by distinguishing meaning from application but that doesn’t work with majestic, imprecise, and vague provisions like the ones mentioned above. 

We know that the people living in 1873 thought the original public meaning of the Fourteenth Amendment was that women could be barred from practicing law. Solum says we are not bound by that meaning today because the people living then were wrong about the facts. If he is right, then we are not bound by what the people in 1873 thought about gays and lesbians, abortion, the administrative state (such as it existed then), and the relative dangerousness of guns compared to concerns about public safety. In other words, Solum’s brand of originalism, contrary to his two major assumptions, leads to a state of affairs where the meaning of the text is not fixed at ratification (as applied to hard facts), and we are obviously not bound by what the people at the time thought about how that meaning applied to practical legal problems. In other words, originalism and non-originalism end up in exactly the same place in the context of real life litigated cases.

Solum argues that originalism done correctly is neither liberal nor conservative and that “there is something for everyone, but everything for no one.” As an example, he argues that the Court’s lax rules on summary judgment whereby judges dismiss civil cases before they get to the jury might be inconsistent with the original public meaning of the Seventh Amendment, which provides that in “Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” But the people who ratified this provision lived in a much less litigious world than we have today. They may well have been under the factual misunderstanding that our judicial system can tolerate the time it would take to try all civil cases without the current rules for summary judgment. Or not. The point is that if we allow judges to revisit the factual assumptions upon which the constitutional text was based, then we are in effect changing the meaning of that text, something judges do on a daily basis. If this is originalism, then everything is originalism.

I don’t know any legal scholar (except perhaps Judge Posner) who believes that judges may ignore clear constitutional text or the universally understood historical context surrounding that text. No one thinks judges can simply disregard the Constitution's broad principles. Yet, most legal scholars, including Solum, believe that even though judges are bound by the vague principles set forth in the Constitution, the application of those principles to new factual contexts requires judgments based on judicial evaluations of today’s world, not the facts of 1787 or 1868. To repeat, I understand that Solum and other like-minded originalists want to say that meaning is "fixed" even as applications change over time. I am confident they sincerely believe this distinction is important. But is is not important because virtually all of the conflict that arises from constitutional litigation involves application not meaning. That is why I say that for all practical purposes, meaning does change over time, and one of Solum's premises about originalism is inconsistent with how he actually suggests judges decide real cases.

The big “surprise” in Solum’s essay then is that originalism, in his hands, allows judges to update the application of the Constitution’s broad phrases over time as facts and values change.  Why Solum, and many others, feel the need to call this form of living constitutionalism originalism, is a question for another day (or a book to be published sometime this Summer).