Wednesday, November 14, 2018

Is Originalism a Theory?

By Eric Segall

Justice Scalia used to defend his originalist theory of constitutional interpretation by arguing that, although originalism has its flaws, it was better than any other interpretative method and that "you can't beat somebody with nobody," meaning that it takes a theory to beat a theory.

As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.
Professor Michael Paulsen, a noted national scholar and Originalist, believes that originalism must be exercised with strong deference to the decisions of non-judicial political actors. He has said the following:
Where vague or general language admits a range of meaning, actions of representative government falling within that range cannot be said to be unconstitutional. Ambiguity does not supply a justification for courts picking any answer they prefer. Just the reverse: The less clearly the Constitution addresses any issue, the less the justification for judicial invalidation of what elected branches have done. The more unspecific a text, the more room it leaves for democratic choice. This is a feature, not a failure, of Originalism.
Other prominent Originalists who believe that judicial deference and modesty are essential components of the theory include Professors Michael McConnell, Rick Duncan, and Steve Smith. For example, Professor Duncan, objecting strongly to Roe and Obergefell v. Hodges, has said that "of course, some results that liberal elites love, such as the Court created right to abortion-on-demand and the judicial re-definition of marriage to include same-sex couples, are based upon non-originalist reasoning. Originalism could never have reached these results." No doubt many originalists agree with Duncan. Yet, other noted Originalists, such as Randy Barnett, Ilya Somin, and Steve Calabresi, have made originalist arguments for one or both of those cases. That is a broad tent given the importance and controversial nature of both Roe and Obergefell.

More importantly, Originalists like Randy Barnett, Ilya Somin, Ilya Shapiro, Jack Balkin, and Evan Bernick all reject substantial deference when it comes to originalist approaches to constitutional interpretation. Here is how Barnett has put it:
Instead of “judicial conservatism,” which admonishes judges to put their thumbs on the scale to uphold laws, we favor 'constitutional conservatism' in which judges are restrained to follow the Constitution, whether this leads to upholding or invalidating legislation….  Those who reject implementing [imprecise] provisions because these clauses don’t meet their standards of specificity would disregard the written Constitution in the name of their own conception of 'the rule of law,' just as surely as others reject the written Constitution because it does not comport with their own conception of 'social justice.'  Both positions should be rejected by constitutional conservatives.
Barnett, Somin, Shapiro and Bernick have almost nothing in common with Paulsen, Duncan, and McConnell when it comes to applying their frameworks to real cases other than they all adopt the label "Originalist."

Justice Scalia once said the following about gender discrimination and the Fourteenth Amendment: 
Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.
Yet, most Originalists today believe that the Fourteenth Amendment justifies a heightened standard of review for laws that discriminate on the basis of sex or gender. Professors Calabresi and Somin have argued that, even though the people of 1868 believed most laws discriminating against women did not violate the Fourteenth Amendment, those people based that view on mistaken ideas about the nature of women, and we are not bound by those mistakes today.

Some Originalists, such as Professors Will Baude and Steve Sachs, think Originalism is already our law. Most other originalists, however, such as Barnett and Paulsen, argue that their own originalism theories are mostly normative, not descriptive. Responding to a post of mine suggesting that Barnett's originalism calls for judges to change how they decide cases and do so in a more originalist fashion whereas it is unclear whether his colleague Professor Larry Solum's brand of originalism is normative or descriptive (and this matters to evaluate the work of Baude and Sachs), Mike Ramsey said the following:

Until recently originalism theory was mostly normative, and it still generally is, but the 'positive turn' in originalism theory led by scholars such Professor[s] Baude and ... Sachs have sought to reinvent it to some extent in as a descriptive enterprise.... I agree with the post that Professor Barnett's scholarship is clearly normative and that Professor Solum is somewhat more complicated.
Speaking of Professor Solum, he was the only law professor in the country to testify about originalism during the Neil Gorsuch confirmation hearing. Here is part of what he said:
For most of American history, originalism has been the predominate view of constitutional interpretation. There have been episodes in our history where fidelity to the constitutional text was neglected ....But for most of our nation’s history, the Supreme Court has made a good faith effort to follow the constitutional text.
This explanation sounds descriptive. Yet, elsewhere, Solum has said this:
I want to make it clear that in my view (and in the view of many other originalists), the Supreme Court has frequently been driven by politics and that the outcome of many Supreme Court decisions are likely inconsistent with original meaning.
It seems clear that, not only do originalists disagree with each other about whether originalism is normative, descriptive, or something in between, but some originalist scholars aren't sure themselves whether the theory is meant to describe what judges already do or what they ought to do.

This uncertainty is important because so-called living constitutionalists, such as Professors Philip Bobbit, Mike Dorf, Dick Fallon, and Larry Tribe, who argue for a pluralistic method of constitutional interpretation, are quite clearly advocating an approach they believe is both normative and descriptive. They argue that judges use well-recognized factors such as text, history, political practices, non-ratification era history, and evaluations of consequences to decide cases. In other words, they have a theory, it is well-thought out, and many non-originalists embrace it. The same simply can't be said about originalism today.

Every time I raise this issue with Originalists, they respond that they do share something very important in common. They say most Originalists agree with Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges. Leaving aside that some prominent Originalists such as Professor Smith advocate for a more intent-style as opposed to public-meaning approach to originalism, the reality is that just repeating those two principles (fixation and constraint) without more tells us little about how originalists would actually resolve hard constitutional cases. As noted above, some Originalists favor aggressive judicial review, some deferential review; some believe we are bound by what people living in 1787 or 1868 thought about specific questions, while others think we can disregard those expectations if they are based on mistaken facts (which in the case of sex discrimination I would argue are really changes in values). And I haven't even mentioned the many different approaches to integrating non-originalist precedent into a serious and workable theory of originalism, which is an issue that divides many Originalists.

I am far from the first scholar to point out how many disparate theories of originalism are embraced by self-identifying Originalists. Professors Tom Colby and Peter Smith have raised this issue in a series of articles, concluding that originalism today is a "smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label." 

I would add that this "smorgasboard "of theories" has one element in common: the need among believers to maintain the faith that Originalism is the best method of constitutional interpretation. But if it takes a theory to beat a theory, originalism has a long way to go before it can persuasively make that claim in light of the major disagreements among Originalists themselves about how to properly decide hard constitutional questions.


Shag from Brookline said...

Over the years at his Legal Theory Blog Larry Soumn has recently stated "It takes a theory to beat theory" as he expounds his originalism. The law is not a science and the use of natural science's "theory" is miscast. In natural science a "theory" can be tested. Instead of "theory," law scholars would be more accurate to use "hypothesis" as used in the natural sciences. As originalism has evolved, it has searched for more objectivity, starting with the highly subjective original intent to the current original public meaning which continues the search for more objectivity what with the New Originalism's "Construction Zone" when the original public meaning may not be clear. A more objective approach has recently been proposed with a corpus lingus project that seems to have stalled. Barnett and a co-author conjure the "spirit" of the Constitution in the "Construction Zone." Baude has come up with yet another approach. These are all more in the nature of hypotheses, not theories. The search for the Holy Grail of constitutional interpretation/construction continues. While "faith" may be what binds most originalists, I'm more persuaded by Mitchell N. Berman's "Originalism Is Bunk" - or it's just junk science.

John L. Davidson, Esq., Saint Louis, Missouri said...

Great benefit of science is when it proves something is false. In economics we know that markets do not self correct to full employment. Any theory of economics asserting such is false.

Viewed in this light, Originalism is a false theory. By 1815 both Jefferson and Adams had observed that so little of the history of the last 35 years had been preserved that no real accurate history was then possible. Originalism assumes sufficient materials are available when we factually know that is not true.

Further, the modern World presents so many totally new issues that the Constitution really has no application whatsoever. Consider nuclear power and aviation or biology altering cells. Originalism really breaks down when one considers second order effects, such as to really deal with nuclear power or biological terror we, as a society, need the additional brain power of women. This makes whatever people thought about gender or sex totally meaningless.

Shag from Brookline said...

As I recall Eric's book was set for publication before the publication of historian Jonathan Glenapps' "The Second Creation: Fixing the American Constitution in the Founding Era" which was the subject of a symposium at Balkinization. The issue of originalism surfaced in the book and in comments of symposium reviewers and the author's responses. Check this link:

for links to such reviews and responses. Jack Balkin and Will Baude, originalists, provided reviews; some non originalist reviewers discussed originalism. The author's responses addressed comments on originalism raised by reviewers.

The symposium has been noted at the Originalism Blog. I have faith that over time originalists at that Blog may address Glenapp's book as it relates to originalism.

I wonder if Eric has thoughts on "Second Creation."

Joe said...

"right to abortion-on-demand"

That is, regulated medical procedures that need not be provided except in case of emergency.

"judicial re-definition of marriage to include same-sex couples"

And, ending coverture, strict limits to divorce, bans of sex before marriage, etc.?

"Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant."

At least a few did, actually, but if the feminists of the day that did are "nobody," well okay. Anyway, many did think "equal protection" of "persons" included women to some degree at least. Reasonable regulations would be a weaker test than today, but I can imagine many figured at least a few things (women speaking in public? like abolitionist women did) would be allowed under equal protection principles.

Such is more application than general theory, the overall theme of this post, but I think there is some overlap. Originalists (I will resist quotation marks) make various self-assured broad claims and use certain language that doesn't hold up. I do think originalism in some fashion is a "theory" but perhaps if I grant that, they will admit there are other theories.

But, many will not. They will keep on saying that the only alternative is making **** up. For them, perhaps I want somewhat generously grant the premise. I agree with the comment that a value of theories is that they can be deemed false.

Shag from Brookline said...

Here's a suggested hypothesis for original public meaning originalists to consider: Each time an amendment to the Constitution is ratified, the entire Constitution as amended results in an updated "Fixation" date for purposes of original public meaning. The reasoning is that ratifiers are not skilled in original public meanings at earlier "Fixation" dates. Example: View gender discrimination as of the date of the ratification of the 19th A rather than the 1868 ratification of the 14th A. [It might be argued that the ratifiers of an amendment might also "adopt" SCOTUS decisions not in conflict with such amendment.]

CJColucci said...

Over at the Volokh Conspiracy, there is a discussion of a newly-ratified provision of the New Hampshire constitution having something to do with informational privacy. I can't describe it any more precisely than that, and neither can anyone else. If we can't determine the original public meaning of a provision a week after its ratification, I am skeptical that we can determine the original public meaning of one- or two-century old provisions based on dipping into old dictionaries and cherry-picking from whatever contemporaneous partisan polemics we happen to have heard of in high school.

Shag from Brookline said...

CJ's point may be demonstrated in Glenapps' book as the Framers in the first decade following the ratification of the Constitution and the Bill of Rights did not seem to apply original public meanings in various regards. One might have assumed that the Framers understood their original public meanings.

Originalism as a movement started in the 1970s as a reaction to primarily the judicial activism of the Warren Court. The Federalist Society was part of this movement alongside Ed Meese and the Reagan Administration. I've pointed out in the past that the foundational decision of the Warren Court, Brown v. Bd. of Educ. (1954, Unanimous, may have "inspired" this movement more than a tad. Slavery was the original sin of the Constitution. Was originalism's original sin a reaction to Brown?

Shag from Brookline said...

Over at the VC there is a post on Eric's post here. The VC post makes a reference to a "change" in Eric's post but I'm not aware of an "Update" here by Eric.

In any event, the VC post editorializes that if originalism is not a theory, then the same might be said of living constitutionalism. Have claims been made that living constitutionalism is a theory? Are there any cites? I personally prefer the reference to non-originalism, not as a theory, but various interpretive methods that have been employed by SCOTUS and others over the past 200+ years.

Joseph said...

Shag, I would cite Prof Segall's post above as a claim that living constitutionalism is a theory.

"This uncertainty is important because so-called living constitutionalists, such as Professors Philip Bobbit, Mike Dorf, Dick Fallon, and Larry Tribe, who argue for a pluralistic method of constitutional interpretation, are quite clearly advocating an approach they believe is both normative and descriptive. They argue that judges use well-recognized factors such as text, history, political practices, non-ratification era history, and evaluations of consequences to decide cases. In other words, they have a theory, it is well-thought out, and many non-originalists embrace it. The same simply can't be said about originalism today."

He takes some issue with the label "living constitutionalists" but runs with it and concludes, "they have a theory."

Shag from Brookline said...

Joseph, my point is that "theory" in law may be a loose term as compared to its use in the natural sciences. A non-originalist may differ from living constitutionalists. Can it be said that the the living constitutionalists named by Eric are fully in accord with each other? Not all New Originalists are in accord with each other. My hypothesis is that there may be multiple theories of both originalism and living constitutionalism that clash within each group, diluting them into mere hypotheses. Add to this theories that non-originalists who differ from living constitutionalists may have to further dilute the meaning of theory in legal parlance.

I imagine that if there were to be another constitutional convention, its participants might weigh heavily the wisdom of including a provision regarding how an emerging new constitution might be interpreted/construed. I would love to witness that discussion.

I have no quarrel with the basic theme of Eric's post questioning originalism as a theory. In fact, I commend Eric as originalists usually attempt to circle their wagons around his views. More non-originalists should stand with Eric

Shag from Brookline said...

Over at the Legal History Blog there is an interesting post on "Schmidt on Originalism and the Fourteenth Amendment" at:

The Abstract is short and interesting, focusing on Secion 5 of the 14th A. Also interesting is the poster's comment on certain programs featuring historians on originalism, including Prof. Glenapps.