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.