Wednesday, October 17, 2018

Originalism in the Classroom?

By Eric Segall

Over the last two days, numerous folks on social media, triggered by a blog post by John McGinnis, have lamented, in McGinnis' words that "it would be malpractice for law professors "not to describe originalism as an important theory of constitutional interpretation." He went on to say the following:

There is reason to believe that many professors are failing to give their students a fair minded introduction to originalism. The first is anecdotal. I have given talks at law schools across the country. I hear from students that originalism is generally given short shrift and Scalia opinions are often simply ridiculed. The second is sheer ignorance. Most constitutional law professors are not constitutional theorists and do not study originalism as part of their scholarly enterprise. It is all too easy then for political bias to lead them to denigrate or downplay a theory that has been associated with conservatism, when they are themselves, as studies show, likely to be left-liberals.
As originalists on Twitter like Randy Barnett agreed with and repeated this refrain, I raised an issue that I discuss at length in my (finally available) book Originalism as Faith. What would it mean to teach originalism in  a world where that term no longer has any identifiable content other than as a political signal or an article of faith?

First, to teach that Justices Scalia or Thomas, or the Court as an institution, has ever embraced originalism seriously would in fact be malpractice. As I've documented many times, and explain in Chapter 7 of my book, Scalia and Thomas have voted in a non-originalist manner throughout constitutional law including in the areas of affirmative action, campaign finance reform, takings, standing, federalism, first amendment, and virtually every other area of litigated constitutional law. As to Scalia, if you don't believe me, trust Randy Barnett on this point.  And if you believe Barnett, well Thomas and Scalia voted the same way in most (not all) constitutional law cases. To both of them, the Constitution is/was alive and kicking. I think most law professors already know this and teach accordingly.

Professor Michael Rappaport has suggested to me that many of my public statements critical of originalists deal with judicial originalism, not what he calls "academic originalism." I'm not sure that's fair, but let's assume a constitutional law professor teaching the basic con law course wants to teach originalism as part of her course. The question would be: whose originalism?

Larry Solum is a well known originalist who testified in the Gorsuch hearings and has written thousands of pages on the subject. He  has not yet, however, applied his theory to actual cases (really). So that seems like somewhat of a dead end for a survey course. I would assume Robert Bork's writings would be part of any originalist materials, except few originalists today agree with his method that included a heavy does of judicial restraint (same with Raoul Berger and Lino Graglia). Those Original Originalists simply don't seem to matter much anymore (to my chagrin).

Ilya Somin and Steven Calabresi urge a form of originalism that they claim justifies the Court's decisions overturning same-sex marriage bans, but many other originalists such as Michael Paulsen think that conclusion is, well, not only not originalist, but comparable to Dred Scott. Randy Barnett and Ilya Shapiro would like to overturn much of the administrative state through their brand of originalism via "judicial engagement", though Michael McConnell would absolutely deny judges that role under his version of originalism. Meanwhile, Will Baude and Steve Sachs think originalism is already our law (including cases like Brown and Obergefell), Most originalists today do not agree with that view.

The reality is that there is no one, two, or even three forms of "originalism" today, which is why my book spends a lot of time talking about the Original Originalists, the New Originalists, and the New New Originalists, and many in between.

The response to all this (there is unlikely to be one) is that all originalists think that the original meaning of the Constitution is fixed at the time of ratification and should play either a primary or decisive role in constitutional interpretation. The problem there is that many of today's originalists believe we are not bound by the "original expected applications" of the vague principles that lead to constitutional litigation. Once that move is made, as scholars like Tom Colby and Peter Smith have repeatedly written, the line between originalism and so-called living constitutionalism evaporates when real cases are at issue. It is far from clear whether the time necessary to go through all that would be worth it in a survey course, especially because many originalists do not agree with that "original expected applications" move at all.

Of course any survey course on constitutional law that talks about constitutional interpretation should mention originalism as a method judges and scholars discuss as relevant to that enterprise. But if originalists really want more serious attention in the classroom they should act more like originalists and take text and history seriously as a method to help judges decide hard cases, not as an article of faith lurking in the background of Supreme Court decisions or as a label academics use to justify a wide array of interpretative choices from substantial deference to moderate deference to outright judicial aggression.

If a law professor wants to teach an entire seminar on Originalism, however, as Will Baude and Eric Posner did a few years at the University of Chicago, I know a new book that might assist in that enterprise.


Joe said...

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, originalism stalks our jurisprudence once again, frightening the little children and school attorney. Its most recent burial, only in the last book, was, to be sure, not fully six feet under.

Shag from Brookline said...

A sequel to Eric's "Originalism As Faith" might be titled "Originalism As 'Con' Law" focusing on the originalist approach of John McGinnis. Originalists of varying stripes, like libertarians, find it difficult agreeing with each other on originalism. Just check out the Originalism Blog over the years, whose posters seem to unite only when originalism is criticized, including as they have attempted to circle their wagons around Eric.

Over at Blakinization a new book "Second Creation: .... " is under review. Jack Balkin started it off with a review that addresses the views of certain originalists in the context of the book being reviewed. Jack is a New Originalist, of sorts, and concludes that the book supports his view of "living originalism." A couple additional reviews have been posted and more are coming. Perhaps a sequel to "Second Creation: ... " might be titled "Third Creation: The Civil War's Destructions and Amendments."

I welcome this post by Eric as it, for me, dovetails with the Balkinization reviews of "Second Creation: ... " Comments are not accommodated for such reviews, unfortunately. I imagine the posters at the Originalism Blog are huddling to determine how to circle their wagons around both this post of Eric's plus the Balkinization reviews of "Secred Creation: .... "

By the way, Joe's comment is a reminder that Halloween is rooted in faith, as Eric suggests for originalism. Con Law profs might be looking for Scalia or Thomas masks for their children for Halloween, ... or Justice K? Scary.

Joe said...

A direct reply:

If those don't catch my reference, it is a twist on a famous line is a Scalia concurrence in the Lamb's Chapel case.

Shag from Brookline said...

"Voodoo Originalism" may conflict with "Faith-based Originalism."

Joe said...

Rick Hasen has a new article on Slate that argues that regardless litigants are stuck with using textualism and originalism (whatever those mean) to win cases. It cites the book. Segall on Twitter noted:

"Embracing Originalism” can’t be a thing b/c there are too many varied forms of it. In the “2nd” tier cases Rick talks about, lawyers should talk the talk the Justices want to hear but even in these cases, first appeal to values, then talk the talk, as any litigator would suggest.

I agree Prof. Hasen is just applying a standard rule to current realities.

Shag from Brookline said...

The Originalism Blog has a post on John McGonnis' blog post and Eric's response post here. Also, via an Update, reference is made to Mark Tushnet's Balkinization post on Eric's post that Joe provided a link to in his 10:19 AM comment. There's not as yet a circling of wagons around Eric's post. Mike (I'm not Rappaport) Ramsey's editorial comment suggests he is not in great disagreement with Mark Tushnet. Meantime, there's another review at Balikinization of "Second Creation: ... " Perhaps when the dust settles on those reviews there may surface a yet new theory of originalism: "Creationist Originalism." What could be more faith-based than that? [Keep in mind the several renditions of Genesis.]