Monday, January 21, 2019

Originalism and Deference: A response to Ilan Wurman

By Eric Segall

Professor Ilan Wurman of Arizona State has written a thoughtful and mostly fair review of my new book Originalism as Faith. I wanted to briefly respond because the one aspect of the review that I think muddies the waters also happens to be what I think is the major new contribution of my book.

First, the good and highly flattering news. Wurman praises my account of living constitutionalism, and then suggests that my argument that most scholarly accounts and judicial applications of originalism today are hard to distinguish from living constitutionalism has much merit:
Segall’s account of originalism in practice, and also of some modern originalists, is undeniably fair, thoughtful, and in many ways accurate. Some schools of originalism may very well be hard to distinguish from living constitutionalism. One maintains a distinction between 'interpretation” and "construction"—interpretation dealing only with the meaning of the text, and construction dealing with the question of what to do when the meaning doesn’t answer the question at hand. If this distinction is real, and if meaning often leaves a large construction zone, then perhaps originalism can be hard to distinguish from living constitutionalism.
Wurman then goes on to repeat one of the arguments made in his book A Debt Against the Living: An Introduction to Originalism. He maintains that originalism does not require judges to be bound by the factual assumptions or mistakes made by the drafters and ratifiers of the Constitution. As I've written before and emphasized in my book, if judges are not bound by the specific assumptions made by people living in 1787 or 1868 about how the words they used would or would not apply to specific issues, such as whether the 14th Amendment prevents states from prohibiting women from being lawyers (they didn't think it did), then originalists are just using modern standards to override past decisions, and any distinction between originalism and other constitutional methodologies breaks down.

Wurman first responds to this as follows:
Segall doesn’t get my higher-order methodology wrong. Indeed, I don’t think he even gets wrong the higher-order methodologies of the other originalists he claims are indistinguishable from living constitutionalists. In my view, Segall is wrong because his lower-order premise is mistaken. The Constitution’s provisions are not the broad and vague generalities that Segall or advocates of a large construction zone believe. The problem with Segall’s argument is that the Constitution simply isn’t written in terms as broad as he thinks. If I am correct, then our disagreement dissolves. After all, if 'equal protection' means nothing more nor less than 'equality' subject to reasonable discrimination, and if 'due process' is nothing but a delegation to future courts to decide what is 'fair,' then I suppose there really is no daylight between our theories.
Wurman goes on to argue that the broad provisions of the Constitution that lead to litigation, like the Due Process and Equal Protection Clauses as well as the First Amendment, actually have quite narrow meanings. He says that “Due Process” is not a blank check for the Supreme Court to decide what is “fair,” and Equal Protection is "not is not about equality generally, but about equal protection of law."

Wurman concludes that
the Constitution only insulates from democratic politics those rights most essential to free societies.... It leaves most other questions for democratic decision-making precisely because the framers knew we would evolve and progress over time. And, of course, for the most fundamental regime changes they gave us the amendment process—which is exactly how we’ve used it. What the Constitution assuredly is not, is an open invitation for judges to import their own, extra-textual values into the Constitution. There is still at least that much daylight between originalism and living constitutionalism.
There is some irony to Wurman reviewing my book by offering this narrow account of judicial review. My first book, Supreme Myths, argued that judges should only overturn laws when there is, in Hamilton's words in Federalist No.78, an "irreconcilable variance" between the statute and clear constitutional text or uncontested historical accounts of that text. I may be one of the last constitutional law professors writing today who needs to be reminded that "the Constitution assuredly is not ... an open invitation for judges to import their own, extra-textual values into the Constitution."

More importantly, the overriding point of Originalism as Faith is that originalists only have two coherent choices. They can use text and history as the main instruments of constitutional litigation if and only if they bring to the table great deference (something very few modern originalists embrace). That is because, if we are not, as Wurman contends, bound by the ratifiers' specific factual assumptions, we will have to bring our modern assumptions into play. But once we do that, there is no material difference between originalists and living constitutionalists. 

The other option, the one I prefer, and the one advocated by Robert Bork, Raul Berger, Lino Graglia, Steve Smith and Michael Paulsen, among a few others, is for judges to only reverse the decisions of other political actors when a party brings to the court clear and convincing evidence of an "irreconcilable variance" between a law and the Constitution. If this is the kind of deference Wurman has in mind, then we agree on the appropriate nature of judicial review, and on what originalism entails. But if he has in mind a larger role for judges to play (and I think he does) and he wants to self-identify as an originalist, he needs a much richer theory of the relationship between recovering constitutional meaning and judicial review than he has presented so far either in his kind review of my book or in his own book. In other words, there is a great tension--one I have not yet seen resolved by any originalist scholar or judge--between Wurman's belief that we are not bound by the factual assumptions of the ratifiers and the proposition that the Constitution "is not an open invitation for judges to import their own, extratextual values into the Constitution." 

I hope Wurman continues to write on originalism and wrestles with that very problem.

One concluding thought. Over on the Originalism Blog, my friend Professor Mike Ramsey noted and quoted from Wurman's review, and then wrote the following:
[T]here are many provisions in the Constitution that are obviously not broad generalities -- they are, rather, fairly specific directions about the design of government.  Even if originalism fades into nonoriginalism for some constitutional provisions, it remains distinct as applied to others.  To pick just one example, the clause at issue in NLRB v. Noel Canning -- the President's recess appointments power -- is not a broad generality.  Originalist and nonoriginalist approaches to that clause are quite distinct, as the majority and concurrence in that case demonstrate.
Ramsey's example reveals a lot about the alleged differences (or not) between originalism without deference and living constitutionalism. First, Canning is the relatively rare case where a theory of deference to political actors is not helpful, because the case involves a direct confrontation between the Congress and the President, not just an individual or group and one branch of government. The judge deciding the case has no choice but to show a lack of deference to one of the two other branches of the federal government. I have always conceded that there are some situations where a strong theory of deference will not materially assist the Court.

Second, even if we know the true original meaning of "recess appointment," that meaning was based on a host of important factual assumptions that Wurman (and I think Ramsey) believe we are not bound by today. In 1787, the Congress met much less frequently than today, travel to and from the capital was obviously much more difficult than today, and the power, prestige, and size of the Executive Branch was completely different compared to the Congress than it is today. The meaning of "recess appointment" may well have been based on any combination of now changed factual assumptions, thus allowing even an originalist judge to update the application of that meaning to modern conditions--in other words, to act exactly like a living constitutionalist.

Finally, and most importantly, unlike words and phrases like "due process," "equal protection," "free exercise," "establishment," and "speech," the phrase "the recess of the Senate" might have had a technical and narrow legal meaning. I can agree with Ramsey that "[e]ven if originalism fades into nonoriginalism for some constitutional provisions, it remains distinct as applied to others," and also argue that the vast majority of litigated constitutional law cases (almost all of them in fact) involve vague and imprecise constitutional text where "originalism fades into nonoriginalism." Given that reality, I can sleep quite well at night reflecting on my book's major thesis that originalism without great deference is indistinguishable most of the time from living constitutionalism, and will ultimately rest on modern values and assumptions, not original meaning.
is check for the Supreme Court to decide what is “fair.”

5 comments:

  1. I have the book but am reading library books first.

    "those rights most essential to free societies"

    The author in his first book put aside criminal justice provisions, arguing that federal judges at least have a certain skill set and authority on some level to interpret them over and above the average legislator and the like (somewhat debatable at some point but okay). Notable here since many "free societies" do not share various "rights" in this area. The Constitution makes various choices that "free societies" have disagreed with.

    The review also has what to me is somewhat tiresome pablum about "blank checks" and the like. Realistically, judges have various limitations here, it is a question of degree. Those who do not follow an "originalist" path repeatedly have limits not found there, such as those who are restrained by precedent (something to look for with Kavanaugh, he already flagging his interest) and a philosophy of judicial restraint generally.

    Plus, "not is not about equality generally, but about equal protection of law" doesn't do much for me. That still is rather broad. The final discussion of the recess case (which strongly split the Court even if the justices in a narrow way all thought Obama was wrong) is interesting. ES' general discussion underlines that history is informative, but often not quite the way "originalists" say.

    ReplyDelete
  2. [Note: Because of eyesight issues, I click on "show original post" as it is an easier font for me to read. At the close, there seemed to be a hanging clause that did not seem to fit with the closing paragraph. I then shifted to the post in smaller font and that hanging clause was not present. Also, in the "show original post" font, quotes are not as readily identified as in the post in smaller font. I really appreciate the larger font as magnifying the post in the small font requires several steps because of the width of the narrow font. I can more readily magnify the larger font.]

    I enjoyed this post's careful explanations. One aspect I would like to learn more of are the references to "Framers' actual assumptions." and the "actual assumptions of the ratifiers." These seem to conflict with "original meaning" originalism, including the New Originalism's interpretation/construction two-step. If there were not a "collective actual assumptions" by the Framers and/or ratifiers, would this be a return to "original intent originalism" that few modern originalists seem to follow?

    ReplyDelete
  3. This comment has been removed by the author.

    ReplyDelete
  4. I'm a big fan of the view that originalism, correctly applied, is largely similar to living constitutionalism. I believe that as a matter of theory the Constitution demands just what the original ratifiers/public understood themselves to be committing themsves to...and that understanding includes application of an evolving body of precedent about how to interpret that document. Indeed, imo, originalism should actually push us more in the direction of judge made law based on considerations of equity rather than the very formalist approach often taken today.

    However, I have two questions about your statements. First, you talk about an irreconcilable difference. However, surely the existance of such a difference is itself heavily informed by one's theory.

    Secondly, you say that:

    "The meaning of "recess appointment" may well have been based on any combination of now changed factual assumptions, thus allowing even an originalist judge to update the application of that meaning to modern conditions."

    This is puzzling to me since surely the meaning of 'recess appointment's as uttered by a competent English speaker at the time of ratification hasn't changed.

    I certainly appreciate how later practice and precedent might appropriately influence how we interpret this provision but one thing which shouldn't is purely linguistic changes about how we use the words 'recess appointment.'


    If recess appointment starts being used to mean sex with someone while your wife is away surely we don't believe the Constitution now grants an exemption to the president to adultery laws under certain questions.

    I presume you meant nothing like this but then why talk about changes to the *meaning* of recess appointment?

    (Hope I didn't triple post..having trouble with mobile browser)

    ReplyDelete
  5. "Second, even if we know the true original meaning of 'recess appointment,' that meaning was based on a host of important factual assumptions that Wurman (and I think Ramsey) believe we are not bound by today. In 1787, the Congress met much less frequently than today, travel to and from the capital was obviously much more difficult than today, and the power, prestige, and size of the Executive Branch was completely different compared to the Congress than it is today. The meaning of 'recess appointment' may well have been based on any combination of now changed factual assumptions, thus allowing even an originalist judge to update the application of that meaning to modern conditions--in other words, to act exactly like a living constitutionalist."

    I think you are mistaken about this. Virtually no self-described originalist I am aware of (maybe Balkin, probably not even him) thinks that we can "update" the original meaning just because it was based on factual assumptions that turn out to be false or changed over time. Wurman's statement that we are not bound by factual assumptions is pretty universally shared among originalists, but originalists mean by this that we are not bound by the factual assumptions themselves unmoored from the text. We are still bound by the meaning of the enacted words even if those words were based on incorrect factual assumptions. For example, the framers created the electoral college on the assumption that there would be no political parties. The fact that they had an assumption that there would be no political parties doesn't mean that political parties are unconstitutional--that is what I think Wurman means by saying that we are not bound by factual assumptions. But, at the same time, the fact that the electoral college was created based on the incorrect assumption that there would be no political parties doesn't mean that a court can magically "interpret" the electoral college out of existence, or change its textually-specified operation, just because it was created based on factual premises that later turn out to be incorrect.

    ReplyDelete