Wednesday, May 30, 2018

Mending Fences With a Question: Is Originalism Theory Mostly Normative or Descriptive?

By Eric Segall

For several decades, Professors Randy Barnett and Larry Solum have made substantial contributions to the judicial, scholarly, and political debates over originalism (among many other topics). It is no secret that I have had my share of disputes with both Randy and Larry, much to my regret, and for which I accept my share of responsibility. This blog post is a first attempt to try and mend fences, and to raise a crucially important question about originalism (as a matter of form, I refer to all law professors discussed in this post by their first names once I identify them as law professors).

One of the many contributions made by both Randy and Larry, along with Professor Keith Whittington, to the debates over constitutional interpretation is to highlight and emphasize the distinction between constitutional interpretation and constitutional construction. The effort by judges to discover the original meaning of the constitutional text is what these scholars mean by interpretation. This is an empirical question. But sometimes even after judges discover that original meaning, the result in a case is unclear. A judge applying original meaning to situations that are not answered by that meaning is what Randy, Larry and Keith call constitutional construction.

For example, we can all agree that part of the First Amendment's original meaning focuses on freedom of speech. But many cases judges are called upon to resolve cannot be decided simply by identifying that principle. Whether or not states are permitted to ban the advertising of cigarettes or prescription drug prices, for example, cannot be resolved by acknowledging that the meaning of the First Amendment is freedom of speech. Judges must balance the right to free speech against other legitimate state interests, which is why perjury and bribery laws are obviously constitutional even though they both punish speech. Most litigated free speech cases require judges to move beyond interpretation and into construction, and the same is true for many other provisions of the Constitution, such as the Equal Protection Clause, the ban on cruel and unusual punishments, and the Second Amendment right to “bear arms.” We can bracket for now how much of a judge’s work is interpretation and how much is construction (an issue we have disagreed about in the past).

In what I think is Randy’s most recent work, he and Professor Evan Bernick have tried to set forth guidelines for judges to use in the construction zone to help them remain true to original meaning when deciding cases that fall into that zone. Their article is a noble effort but its success (or not) is not the point of this piece. Suffice it to say that much more will be written by originalists and non-originalists about how judges should operate in the construction zone. For the purposes of this post, I accept this entire framework.

Larry is probably best known for his work arguing that originalists of all stripes agree with two major premises. The meaning of the constitutional text is fixed at the time of enactment, and that meaning if ascertainable is binding on judges today despite modern conditions (leaving the role of precedent aside). For the purposes of this post, I accept both of those premises.

The question I want to pose is whether Randy and Larry’s work is generally normative, generally descriptive, or both. In other words, do they think that their originalist theories describe what judges have done or what they should do in the future. I don’t mean to suggest this question implicates a binary yes or no answer. Rather, as a general proposition, are their theories more descriptive or more normative? Based on my reading of their work, I think it is likely they disagree on the answer to this question (but even if they do not, I am confident other prominent originalists such as Professor Will Baude and Professor Mike Ramsey would provide substantially different answers to this question).

First, I will provide evidence suggesting why I think Randy and Larry may disagree over this question, and then I will suggest why I think this question is crucially important for future originalism debates.

As to Larry, a little over a year ago, he testified in front of Congress supporting the nomination of Neil Gorsuch to the Supreme Court. He said the following:

Is originalism somehow outside the mainstream of American jurisprudence? The answer to that question is an emphatic “no.” The idea that judges are bound by the constitutional text is very much in the mainstream of American legal thought. For most of American history, originalism has been the predominate view of constitutional interpretation…. The Supreme Court has never claimed that it has the power to override the original meaning of the constitutional text. There are cases where the Supreme Court has departed from the text, but in those cases, the Court either attempts to disguise the true nature of its decision with an implausible reading of the text, or it simply ignores the text altogether—usually by citing precedent. Indeed, if Judge Gorsuch had come before this Committee and testified the he believed that as a Supreme Court Justice, he would have the power to override the original meaning of the constitutional text, I think it is clear that he would not be confirmed.

This testimony sounds like a descriptive account of American jurisprudence (and Larry cited some deviations or exceptions to his account, which also supports the notion that he believes originalism is the norm). I have read much but certainly not all of Larry’s work, and if I am misinformed here I apologize to him. As a fallback position, I am confident that Will and Professor Stephen E. Sachs (both of whose work I may have too hastily criticized in the past) argue that originalism is our law, at least generally speaking.

Randy’s work, however, suggests that he disagrees with Larry’s statement that “for most of American history, originalism has been the predominate view of constitutional interpretation.” First, his recent work with Evan reads as a guide to how judges should behave in the future, not a description of how they have acted in the past. Although Randy acknowledges that the use of original meaning is as old as (maybe older than) the Constitution itself, he also says the following:

It has been a mere thirty-seven years since Paul Brest invented the term “originalism,” and even fewer years since self-identified “originalists” first began developing its theory, and then researching the original meaning of the Constitution, clause-by-clause. If originalism is still in an early stage of development as a school of constitutional interpretation, understanding the proper role and scope of good-faith originalist construction has only just begun. And yet this understanding is essential to completing the originalist project. Recognizing the duty of good-faith originalist construction meets a need as urgent as that of an independent judiciary itself.

Moreover, Randy has argued that Justice Scalia was not an originalist, or at least not the kind of originalist Randy is describing. If that is true, then only one other Justice of the last fifty years (other than Justice Gorsuch) has affirmatively embraced originalism (Justice Thomas). Moreover, I think Randy would agree that going as far back as at least 1936 there have been relatively few explicitly originalist decisions handed down by the Supreme Court. But again, if I am wrong, I am confident that other originalists, such as Professor Michael Rappaport, Professor John McGinnis, and Professor Richard Kay believe that their scholarship is an effort to change how the Court decides cases, not a description of how the Court previously decided cases.

The major objection set forth to the work of so-called New Originalists like Randy, Larry and Keith (a label Randy says in his new piece that he wants to discard), is that when judges decide cases in the construction zone, they are freed from original meaning (or intent or both) and act as living originalists. Since many scholars believe that most litigated cases end up in the construction zone, these critics also argue that New Originalist theory merges with so-called living constitutionalism. The objective of Randy’s latest work is to solve what he says is a gap in the literature about how judges should act in the construction zone by suggesting that they try in good faith to find the original spirit of the text in question and the Constitution as a whole.

           Why is the distinction between normative and descriptive originalist theory so important? The answer to that question, maybe surprisingly, is intertwined with a famous statement made by Justice Elena Kagan at her confirmation hearing. In responding to a question from Senator Leahy, she said the following: “Sometimes they (the framers) laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do…In that way, we are all originalists.” It is clear from the rest of her testimony that what she meant was that, where the Constitution is clear, the Justices are bound by that clarity, but where it is general, judges will have much more work to do. This description of judging is quite close to the interpretation/construction distinction described and/or prescribed by Randy, Larry and Keith.

But here’s the conundrum. If judges are already deciding cases in an originalist fashion, as Larry, Justice Kagan and others seem to suggest, then why the huge political and academic outcry for President Trump (really Leonard Leo on leave from the Federalist Society) to appoint originalist judges as if that would be a serious break from tradition? On the other hand, that outcry makes sense if, as Randy and others suggest, judges need new tools to work in the construction zone because traditionally originalism has not been our law. But if Randy is wrong and judges have been doing this all along, as Larry seemed to argue in his congressional testimony, then the difference between these new Trump-appointed judges and the judges of the last, say 100 years, is one only of result, not method. That’s quite a big difference.

This puzzle is important to my work because I am trying to ascertain originalism’s attraction to such a large and diverse group of scholars, including liberals like Jack Balkin and many new and productive academics. Traditional originalists critiqued what they viewed as a long history of non-originalist decision-making, and I assume Randy and Evan are part of that movement, just offering different tools. Others seem to be arguing originalism is already baked into how judges decide cases. Someone must be right, and someone must be wrong about our past, and I think the more accurate answer has major implications for the originalist debates in courts, law reviews, and confirmation hearings. Do judges just need to do more of what they have been doing all along or do they need to change, as Randy and others argue? 

              I hope Randy and Larry, as well as the other originalists mentioned in this post, will take these questions seriously and in the spirit with which they are intended; a spirit of reconciliation and an attempt to move on from at least some of the tired debates of the past.


Marty Lederman said...

"large and diverse group of scholars"? Compared to what?

Eric Segall said...

I think the combined work of Will Baude, Steve Sachs, Mike Paulsen, Steve Calabresi, Mike Ramsey, Michael Rappaport, John McGinnis, Steve Smith, Michael McConnell, Randy Barnett, Larry Solum, Evan Bernick, Ilya Somin, Josh Blackmun, Seth Tillman, John Harrison and many others who I am sure I am forgetting suggest a fairly large and influential body of work (on scholars). Few of us, if any, write theory that matters to judges. Not sure what your point is.

Shag from Brookline said...

Perhaps better described as "large but not very diverse group of scholars"?

Marty Lederman said...

Yup, those 16 sure are diverse. As for "large" and influential, what percentage of public law scholars are persuaded, do you think (never mind judges)?

Eric Segall said...

Shaq, fair point they are intellectually diverse in the sense they have quite different perspectives on what originalism means but of course they are all white men. Marty, that is a good question. I don't know about "persuaded" but I do know their work gets a lot of scholarly attention, there is an originalism center at San Diego, an annual work shop at Georgetown, two SCT Justices who claim to be originalists and their opinions are discussed nationally, and the POTUS has a hired gun only interested in "originalist" judges. I think it is potentially reckless for those opposed to originalism not to take all this seriously.

Marty Lederman said...

Oh, trust me -- I do take "very seriously" that "their work gets a lot of scholarly attention, . . . two SCT Justices who claim to be originalists [whose] opinions are discussed nationally, and [that] the POTUS has a hired gun only interested in 'originalist' judges." Which is not, I understand, quite what you meant.

Shag from Brookline said...

That originalism center at San Diego serves as a "Tower of Babble" where all speak the same language but do not agree on a "universal" theory of originalism but sic uniformly on all those who critique any version of originalism in any way. It's a faith-based center.

Joe said...

"leaving the role of precedent aside"

An exception that again raises the degree of generality conundrum.

"Precedent" seems to compel at best a weak form of originalism. See, e.g., Michael H. v. Gerald D. (O'Connor and Kennedy, concurring).

I have this idea that application will be selective akin to CJ Roberts' concern about immunity as cited by Prof. Dorf's latest column.

Shag from Brookline said...

As I recall, Jack Balkin had once been routinely included in the designation of New Originalism. Is he no longer a New Originalist or is there, as I suspect, a New New Originalism. Randy and Evans' approach described by Eiric in this post:

" ... about how judges should act in the construction zone by suggesting that they try in good faith to find the original spirit of the text in question and the Constitution as a whole."

is a close variation of Jack Balkin's "Living Originalism." Judges should always empty "good faith" in judging but finding the "original spirit of the text in question and the Constitution as a whole" when in the construction zone seems much more elusive than the original meaning when interpretation (and not construction) is involved. Is that "original spirit" determined keeping in mind the various times the Constitution and its 27 Amendments were ratified, sort of a floating "original spirit"? Is "faith" required on the part of a judge in finding such "original spirit" beyond what "good faith" normally means in law?

Eric, I assume you are ready and preparing for being circled by the wagons of originalism. Perhaps other non-originalism scholars will invade the circle to provide assistance. But you've done well in the past. Your efforts have pointed out that originalism continues to evolve

Shag from Brookline said...

Originalism has tied-into corpus linguistics as a means for identifying the original meanings of the 1787 Constitution and its Amendments. Assuming this may be successful for interpretation, could it function for the New Originalism's "construction zone" as perceived by Randy and Evan's "original spirit," and if not, is there a higher discipline that might?

Samuel Rickless said...

Hi Eric, thanks for your post. In "Constitutional Originalism: A Debate", Larry (Solum) claims that almost every originalist accepts two theses, the fixation thesis (that the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified), and the textual constraint thesis (that the original meaning of the text of the Constitution has legal force: the text is law) (p. 4). In addition, says Larry, "new originalists" also accept two further theses, the public meaning thesis (that constitutional meaning is fixed by the understandings of the words and phrases and the grammar and syntax that characterized the linguistic practices of the public at the time of ratification), and the interpretation-construction distinction (that constitutional practice includes two distinct activities, interpretation, which discerns the linguistic meaning of the text, and construction, which determines the text's legal effect). Larry makes explicit that originalism, as defined, contains a descriptive (semantic) component and a normative component: the fixation thesis and the public meaning thesis are supposed to be semantic, while the textual constraint thesis is normative (pp. 11-12). Larry describes normative arguments that have been made for the normative component of originalism, some based on the rule of law (pp. 38-42), others based on democracy and popular sovereignty (pp. 42-44). As for what should be done in the construction zone, Larry says that "in a sense, originalism as a theory should be silent on this topic" because it is a "theory of constitutional interpretation, and when it offers an opinion on questions of constitutional construction..., originalism exceeds its jurisdiction" (p. 69). Nonetheless, Larry says that some originalists have offered (normative) theories of construction. He mentions Whittington, who offers a theory of construction as politics, Balkin, who offers a theory of construction as principle, and McGinnis and Rappaport, who offer a theory of construction by original methods (pp. 69-70). My sense is that Larry doesn't see these normative theories of construction as essential to originalism: one can be an originalist without accepting any normative theory of construction.

My sense is that most new originalists think that current SCOTUS Justices do not accept the textual constraint thesis, and hence do not count as true originalists, even though they may say they are originalists and sometimes write opinions that strongly resemble originalist decisions (think, for example, of Justice Kagan's dissent in Yates). They will also say, I think, that the construction zone is smaller than living constitutionalists take it to be. This is because they assume that the methods used to determine original understanding, which involve attending to linguistic context and employing syntactic and semantic canons of interpretation, often render what appear to be vague terms more precise and often disambiguate what appear to be ambiguous terms or phrases.

Shag from Brookline said...

Originalism started with original intent originalism that was severely critiqued, following which originalism reacted with newer theories, which were also severely critiqued, until the New Originalism came along with its "construction zone," broadening originalism. But the "construction zone" started to reveal sinkholes, requiring New Originalists to further refine the New Originalism's "construction zone." Larry apparently doesn't like wearing a constitutional hardhat so he tries to avoid the "construction zone." In fact, Larry has stated his view that very little of the Constitution is in the "construction zone" as "interpretation" readily resolves the original meaning. (Also, Larry constantly reminds critics of his articles that his originalism is a "work in progress." which suggests that originalism continues to evolve.)

Randy and Evan, however, perceive the need for the "construction zone" for originalism to survive, coming up with their "original spirit" resolution of "construction zone" obstacles. What seems obvious from Samuel's comment is that the New Originalism has been splintering into a number of subgroups, a further recognition that originalism continues to evolve despite Larry's Fixation.

I appreciate Samuel's comment. I don't know if he identifies as an originalist, and if so, which version. Frankly, I have no idea how "most new originalists think." And I question this from his closing paragraph:

"They will also say, I think, that the construction zone is smaller than living constitutionalists take it to be. This is because they assume that the methods used to determine original understanding, which involve attending to linguistic context and employing syntactic and semantic canons of interpretation, often render what appear to be vague terms more precise and often disambiguate what appear to be ambiguous terms or phrases."

This seems counter to the concerns of Randy and Evan with the "construction zone" in an effort to remove a major roadblock with the New Originalism, perhaps to reverse the direction of originalism to its original intent beginnings. Some remaining original intent originalists have never recognized the "construction zone."

Larry tries to be "scientific" with his theory of originalism, but as yet that science has not come to fruition as demonstrated by the continuing battles between originalism and non-originalism. But some of us recognize that political views are involved in these battles. Of course, if the science works, then we wouldn't have these battles, or would we?