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).


John Ashman said...

"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. "

This doesn't matter. The prejudices of the past, the rationale, even the intended scope doesn't really matter in the end as new facts and understanding of human existence is unearthed. You are NOT discussing the original meaning of the law, you are discussing original use and scope. And while those DO have some weight, they are not, by any means, the final say. The meaning of the text is. To bar women from the practice of law is CLEARLY a violation of equal protection under the law. The problem here wasn't the 14th Amendment meaning, but the prejudices and deficiencies of those who apply it, much like the prejudices and deficiencies of modern living constitutionalist, who bend the meaning to achieve the outcome, whether that be to include or exclude, as their personal whims dictate.

You are the best favor originalists have ever had. Thank you for your constant, unintentional support of originalism.

Joe said...

"The meaning of the text is."

How do we determine the meaning of the text? What does this have to do with "originalism," which is a specific argument in obtaining said meaning?

"Originalism" matters since people who matter thinks it does, basically, akin to Scalia's view mattering [I'm reading Hasen's book now]. But, how much the term is expanded makes the whole thing a really tiresome game at this point. Prof. S., Shag et. al. can have fun or whatever they are having with it, but that's the bottom line for me.

Eric Segall is hiding his talent under a bushel, per his Twitter:

I am the anti-originalist
I know just where I stand
Another preachy law prof
Blogging throughout the land
Text and history don't matter
The admin state they want to destroy
But I know the game you'll forget my name
And I won't be here in another year
If my book doesn't catch on

Joe said...

I'll note separately that Randy Barnett is the "conservative" (they seem to try to have both sides) the Landmark Cases final episode this season will have on CSPAN next Monday to discuss the Bakke affirmative action case. I like the series but have no desire to see that guy.

Shag from Brookline said...

There are differences between textualism and originalism. While there are a myriad of theories on originalism, it's not clear that there are multiple theories of textualism. {Maybe there should be a debate on the differences, but perhaps not with moderation of this thread on the horizon.) The post does not reference the "construction zone" of the New Originalism that Solum is a leader of, perhaps because Solum's "Surprise, Surprise!) makes not reference to the infrastructure problem of that "construction zone."

Focusing on Solum's theory of originalism, one of the late night shows featured a skit on the 27th Amendment that was proposed back in the early days of the Constitution (late 18th century) but not ratified until 1992. There was no time limit built into the 27th A. Over the centuries since its proposal, quite a few states ratified the proposal, but it took an effort by a college student to push to achieve the three quarters requirement of Article V of the Constitution. With regard to Solum's theory of originalism, is the original public meaning of the 27th A as finally ratified in 1992 determined as of that date, as opposed to when it was proposed some two centuries earlier, or by some averaging of the various dates over such two centuries that various states ratified the 27th A? Perhaps the original public meaning of the 27th A remained static over that period of time. (Scholars might, however, challenge the original public meaning of "compensation" in the 27th A over that period of time, and I look forward to law review articles on that subject that Solum might post on at his Legal Theory Blog and posted on at the Originalism Blog as well.)

Back to textualism, how would it address the meaning of the 27th A under the circumstances of its two centuries history of ratification?

By the Bybee [expletives deleted, despite Gina, but thanks, Sen. John McCain], here's the skit"

Who needs C-SPAN?

Joe said...

I'm not sure how many forms of "textualism" there are but there are various ways to interpret the text, including what textual rules of interpretation, of which people disagree with when they interpret the text. See, e.g., the new Rick Hasen book on Scalia that ES enjoyed.

As to the 27A, one of the bloggers out there cited an article suggesting there should be a implied time limit assumed when ratifying things. Sounds like good policy if a political question of sorts. This was deemed as a reasonable implication in DILLON v. GLOSS but Coleman v. Miller sent a somewhat different message. A blogger at Balkanization/Concurring Opinions has discussed the matter of time limits etc. as related to the ERA.

Shag from Brookline said...

Perhaps there is a "text-tosterone" form of textualism to compete with "Holy Trinity Originalism."

Shag from Brookline said...

Query: Can the Constitution be fairly interpreted/construed to provide for the doctrine of laches, such as in the situation with the ratification of the 27th A?

Tom Zeug said...

Who decides what the original meaning of the text is? I don't think that Originalism or textualism is a thing outside of law school. Doesn't each side of a controversy argue for it's interpretation on the Constitution is the true one? Don't judges decide which argument they find persuasive?

The rest is all just academic nonsense isn't it? (Granted the textualist argument is often used to prop up an otherwise weak argument)

Stuart McPhail said...

One possibly useful thought experiment - what is the backwards effect on any judgment under either an originalist or living constitutionalist understanding.

Under the terms of the theories, I would think an originalist would say any judgment is retroactive - i.e., if we decided at T10 that the original understanding of the law at T0 was X, then we should be also say that it was X at T1-T9. After all, the meaning was "fixed" at T0.

Technically, a living constitutionalist could be open to the idea, however, that if the law means X at T10, it could have meant Y at T0-T9. The law is allowed to evolve.

Yet, I would actually guess that the idea that X is now the law and has always been the law is more appealing to those who would ascribe to living constitutionalism than it does to originalism. Only a hypothesis, but I imagine there is a large overlap between those who see originalism as a desirable interpretive method and those who would be open to the argument that we cannot impose our contemporary understanding of the law (and morals) on prior generations.

I would also guess that the flip-side is true. Those who would ascribe to living constitutionalism are more comfortable describing previous understandings of the law as wrong, even at the time they were adopted.

Shag from Brookline said...

It was Paul Brest in his most effective critique of "original intent" who dubbed the dubious theory as "originalism." What if Brest had dubbed it "dying constitutionalism" as more in contrast with "living constitutionalism"? Obviously "originalism" was a better brand, despite its source, as originalist could not come up with something original. Alas, many versions of originalism followed the demise of "original intent" (although "original intent" has retained zombie status with some of the original "original intent" originalists at the Originalism Blog).

I'm reminded of the time I spent in Philadelphia while serving my post-law school draft obligation with the US Army in the mid 1950s. I learned that there were two restaurants called "Bookbinder's." While there was a relationship between the owners of these two restaurants, they resulted from a family feud. As they competed with the same brand, one attempted to distinguish itself from the other by referring to itself as "The Original Bookbinder's" to which the other reacted by referring to itself as "The Old Original Bookbinder's." I haven't been back to Philly since my honorable discharge so I'm not aware of the current Bookbinder's brand(s). But the originalism brand continues to be applied to theories that are not necessarily compatible with each other as can be readily discerned via the Originalism Blog.