Saturday, September 15, 2018

Originalism Without History: A Response to Professor Randy Barnett

By Eric Segall

At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"

These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.

Kavanaugh, not surprisingly, ducked these questions by saying that for "most ... constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.

Barnett's response was different:
[J]udges should not be doing the historical research that originalism requires... this research should be done by constitutional scholars--inside and outside of the law schools--whose evidence and conclusions can be challenged by other scholars in advance of any litigation. Then judges can select the arguments they find most persuasive, as they do when they evaluate competing expert testimony. Indeed, in Heller both Justices Scalia and Stevens relied on outside scholarship by both historians and legal scholars for the sources they mustered in defense of their conclusions.
There are many puzzling things about this paragraph. First, when experts battle it out over the facts it is the jury not the judge who "evaluates" the "testimony." I don't think Barnett wants juries to resolve what to do with the Second Amendment as applied to modern, dangerous guns or what the words "equal protection" mean in the Fourteenth Amendment as applied to school segregation.

Second, few constitutional cases make their way to the Supreme Court. Although amicus briefs are sometimes filed in the lower courts, does Barnett want an army of constitutional law scholars filing dueling amicus briefs in district courts from Montana to New York to Florida? Is that realistic? Does he think judges will read all those briefs?

Third, to cite Scalia's and Stevens' opinions in Heller as good examples of what this kind of process can bring to the table ignores the reality that almost no one (except maybe Barnett) thinks either Justice did a passable job of historical analysis.

Fourth, it is a wild idea that "constitutional scholars" (absent formal training in historical investigation) are competent to decide what words meant hundreds of years ago. Anticipating this argument, Barnett says the following about the relevance of historical evidence to originalism:
[D]iscovering and mustering such evidence is well within the competence of those with legal training. Given enough time--which judges largely lack--lawyers are quite capable of identifying the meaning communicated by a text at the time it was enacted.... One need not be a historian to perform this task, and historians and lawyers rarely reach different conclusions when they are attempting to answer the same question: what meaning was communicated to the public by the words in the text of the Constitution.
One problem with this response is that most historians think it is nonsense that the Constitution "communicated" to the public one single meaning. Here's an example from a fine Washington Post Op-Ed on the subject:
Jack Rakove, the Stanford historian and one of the foremost experts on the revolutionary era, argues that there wasn’t just one meaning of the Constitution at the time it was written and then ratified, but rather the founders had disagreements among themselves over its meaning. He points to the great Chief Justice of the Supreme Court, John Marshall [whose opinion in the famous bank case could be adopted to say] ... 'historians can never forget that it is a debate they are interpreting.' The inability to recognize the extent to which the Founding Fathers argued among themselves is a major flaw in the conservative case for originalism since it is dependent on the theory that people in the 18th century shared a common interpretation of the Constitution. In fact, they did not.
Similarly, as historian Saul Cornell has explained
There was no agreement, even among lawyers, on which background assumptions and interpretive rules  ought to govern legal interpretation in post-Revolutionary America.  Indeed, even if we limit our discussion to the Federalist elite in 1788 we are forced to confront the fact that Madison and Hamilton did not agree on how to interpret the Constitution.
Originalist law professor Lee Strang has argued, and Barnett would agree, that "ascertaining the Constitution’s original meaning exerts pressure on judicial competence . . . [and] judges are not historians—though, luckily, originalism is not history." Similarly, originalist Mike Rappaport has said that
Originalism does not require too much of law professors. Originalist scholars can investigate the original meanings; they don’t need to fully understand the history the way that a historian needs to. Thus, they can practice, not really a form of history lite, but rather a subspeciality of history – an investigation of legal meanings. While this is hard, it does not require that originalists be superhuman or understand the past to the full extent that a historian needs to.
This is all just a little surreal. Are constitutional law scholars supposed to ascertain the legal meanings of words used in 1787 without immersing themselves into the historical practices of the time? More importantly, "it is originalism’s reliance on the past that makes it authoritatively attractive to the bench and bar." Imagine if Justice Thomas were to announce that "originalism isn't really about historical accuracy which is why my law clerks and I rely on it."

The reality, of course, is that originalism as practiced by judges, lawyers, and law professors is not and cannot be about gleaning historical meaning because 1) most are not trained to do so, 2) the constitutional text is too vague and its history to contested to justify firm or even persuasive conclusions about most modern day problems, 3) the overlay of hundreds of years of Court decisions has changed the meaning or the application of the imprecise text that leads to real cases; and 4) lawyers are trained as advocates, not impartial recounters of historical meanings or events.

If a case happens to implicate clear history then of course the original meaning of the text should be one factor in judicial consideration of the issues. But these cases are few and far between. Moreover, the history has to be accurate all things considered, not just in the parsing of words. As Patrick Charles has observed, "by accepting the premise that originalists only need to be familiar with a 'subspecialty of history' or the 'investigation of legal meanings,' originalism fails by facilitating mythmaking more so than fact-finding."

Indeed. Originalism is substantially myth, or maybe more accurately, an article of faith.


Joe said...

Prof. Segall is trying to be modest -- Randy Barnett wants to give him more power over what the law of the land is but he is begging off.

Shag from Brookline said...

Even the New Originalism with its interpretation/construction construct is struggling for objectivity over subjectivity challenges. Corpus linguistics is being studied as a computer tool for ascertaining the original public meaning of words in the Constitution in the relevant time periods of ratifications. But those linguists that have been developing corpus linguistics recognize that it cannot assure accuracy of the method, that it requires more studies. This is a particular problem for the New Originalism's "Construction Zone" which comes into play when the meaning of the text is not clear. New Originalism's Larry Solum is of the view that one rarely has to enter the "Construction Zone" whereas New Originalism's Randy Barnett is of the view that the "Construction Zone" has to be entered frequently apparently requiring a constitutional GPS and a constitutional hardhat. Barnett co-authored a recent article on conjuring the "spirit" of the Constitution as a whole in the "Construction Zone." But it isn't clear as to the timeframe of the "spirit," whether it's current or as of the time the text in issue was ratified. Pre-Civil War, I would say the then "spirit" of the Constitution was a tad different after the Civil War Amendments were ratified.

Regarding Heller (2008, 5-4), there were as I recall close to 100 Amici Briefs filed. I only read a few of them. One of the most interesting briefs was that of a group of linguists [not the corpus linguistics group] that stressed the linguistics role of the prefatory clause of the 2nd A that was counter to Justice Scalia's opinion/decision. Another interesting Amici Brief was by a group of historians that also was counter to Justice Scalia's opinion/decision.

From the beginning original intent originalism through the New Originalism, true objectivity has yet to be achieved, although there have been improvements. Until true objectivity can be achieved, originalism remains an article of faith, as suggested by Eric. Otherwise, originalism is like playing horseshoes: close enough wins.

Joe said...

Randy Barnett was also discussed in this thread:

John Ashman said...

I think this is absolutely hilarious, that the Constitution is so "complex", so "difficult", so "obscure" that the meaning isn't obvious and clear.

All of the key battlegrounds are over areas where the left (sometimes the right), have taken entire phrases COMPLETELY out of all context and meaning to create all new powers for the Federal government. Totally different meanings, often scoffed at by the Founders, such as "Elastic Clause" and "General Welfare Clause", "Immigration and Naturalization Clause", "Plenary Powers", "Intra State Commerce & NonCommerce Clause"

These aren't a result of a lack of understanding, but because the Constitution prohibited politicians from doing as they wished. The argument here is whether the Feds get to violate the Constitution when it believes the results are "desirable".

Segall and his cohorts are disingenuously trying to claim that the meaning is difficult only because the clear meaning works against them. They are perfectly happy to agree with original meaning any time it aligns with their political goals. This is why we simply now laugh at living originalists. They have become a sad, pathetic bunch defending the indefensible.

Shag from Brookline said...

Is a "John" by any other name at best "barren" [sic]?

Perhaps New Originalists, e.g. Randy Barnett, who dwell in the "Construction Zone" when the text of the Constitution may not be clear are included within Segall's "cohorts"? Is the "Construction Zone" of the New Originalism yet another sinkhole forf originalism?

The last two lines of John's comment seem to draw from Trump Tweets.

Shag from Brookline said...

Here's a comment of mine at Balkinization in the thread that Joe at 8:28 PM provides a link above:


In Judge Kavanaugh's opening statement to the Senate Judiciary Committee he said:

"In deciding cases, a judge must always keep in mind what Alexander Hamilton said in Federalist 83: 'the rules of legal interpretation are rules of common sense.'"

Kavanaugh is a self proclaimed originalist, although he did not align himself with a particular version of originalism. I'm not aware whether Hamilton can be identified as an originalist. But I wonder how "common sense" ties into any of the various versions of originalism, but especially "original public meaning originalism." Is that "common sense" a universal or does "common sense" vary between individuals doing the interpreting? Or is the "common sense" determined as of the time that the law being interpreted was enacted? Most judges probably think they use "common sense" at the time they do the legal interpretation, which would suggest that "common sense" evolves over time.
# posted by Blogger Shag from Brookline : 8:54 PM


If the nomination of Kavanaugh weren't so serious, this might call for non-originalists LOL.

Shag from Brookline said...

Constitutional scholars can be, and often are, adversarial, as well as political, as demonstrated in many legal blogs. In this day and age, constitutional scholars are generally not gatekeepers. Some constitutional scholars seek celebrity status, especially when cited in a SCOTUS opinion.

Shag from Brookline said...

As I recall, Judge Kavanaugh in his opening statement did not self-describe as an originalist. This was brought out in the course of questioning by several Senators. Combining what Kavanaugh said in the opening statement noted in my earlier comment and his responses on being an originalist, does this suggest a "Common Sense Originalism"?

Joe said...

Via Twitter and I concur.

Eric Segall: "Happy Constitution Day. That’s today’s Constitution by the way, not the one in the glass case in DC, though that’s a good one for historians to study."