Friday, October 25, 2019

Discretionary Originalism: A Short Response to Professor Solum

By Eric Segall

On Wednesday, Professor Lawrence Solum kindly "recommended" a forthcoming essay of mine in the George Washington On-Line Law Review. This piece argues that Solum made a concession in his latest article on Originalism that demonstrates there is no meaningful difference between the so-called New Originalism and Living Constitutionalism. On his blog, however, Solum also said the following about my argument:
I would note that Segall's contention that "current originalist theory" gives judges "discretion" "to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified" does not accurately represent my understanding of my own views.  The Constraint Principle requires judges to adhere to the original meaning (communicative content) of the constitutional text as was fixed by linguistic and contextual facts at the time each provision was drafted, framed, and ratified.  And the Constraint Principle requires constitutional actors to engage in constitutional construction on the basis of the actual adjudicative and legislative facts at the time of application.  There are important questions regarding the division of fact finding responsibility regarding legislative facts as between different officials (e.g., appellate and trial judges versus executive and legislative officials), but I believe Segall is simply wrong in his characterization of my view as allowing "discretion"--as I understand the meaning of that term. [My italics].
I greatly appreciate the engagement, but I also feel compelled to note that this disclaimer fails to wrestle with the central evidence and arguments in my essay.

I discuss numerous New Originalists in that piece, but as to Solum specifically, I quote this paragraph from his own article:
In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender…Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. [Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.
I can't imagine what Solum means by this if not that judges, when confronted with the original meaning of the constitutional text as applied to a specific problem, can disregard that meaning if "beliefs about facts" have changed since the time the provision was ratified. But, of course, in any modern case there are likely to be many relevant facts that have changed since the original constitutional text was written so long ago. Which facts are relevant enough to displace the original meaning as applied to specific outcomes through what Solum calls "constitutional construction" will give originalist judges enormous discretion in most if not all constitutional cases. 

I make a much longer form of this argument in my essay if people are interested.

For now, it is enough to end with a quote from that essay, and for me to add that it would aid my understanding if Solum were to say more about what he means by "discretion."

I wrote:
When the text is imprecise (virtually all constitutional cases)  and in a world where judges are allowed, actually required, to consider changed factual circumstances since 1787 and 1868, original meaning is neither fixed nor constraining. Another way of saying this is that most originalists now argue that even if we know how the people living at the time expected the text’s original meaning to be applied to anticipated issues, judges still aren’t bound by those expectations if the people at the time were mistaken about their factual assumptions. Such an argument can be made in just about every litigated case, demonstrating that the original meaning of the Constitution cannot yield even modestly clear outcomes in virtually every litigated case....


Joe said...

I appreciate your efforts but the amount of effort required is depressing. It is a statement of the reality we are in where the position you oppose has such much authority.

Shag from Brookline said...

The Originalism Blog had a post on October 13, 2019, with an excerpt from Eric' SSRN paper responding to Larry Solum of he Legal Theory Blog, without any editorial comment. The Legal Theory Blog on October 23, 3019, posted on Eric's SSRN response, providing a lengthy editorial comment. Neither the Originalism Blog nor the Legal Theory Blog provides for comments on posts.

While Solum is a New Originalist accepting the Construction Zone when the original meaning of the Constitution is not clear, Solum thinks the original meaning of the Constitution is clea in most respects leaving a small Construction Zoner. This in is contrast to Randy Barnett, who with his co-author appeals to the "spirit" of the Constitution. Eric points to Solum's inconsistencies. That's how a "theory" is tested. Perhaps, as I have noted on earlier occasions, Solum's FIXATION is psychological.

Asher Steinberg said...

Isn't it your job to answer what *you* meant by discretion, since he's quoting *your* claim about discretion to pick and choose something or another? Unless it's a misquote. Now, maybe he misunderstands what you meant by discretion, but at least a start at clearing up whether your claims about his version of originalism are right or not would be for you to explain that claim, if you're worried he's misunderstanding it.

I take him to be denying that an originalist actually has much discretion in a case like some post-Bradwell, late-20th-century case challenging Bradwell. You claim that an originalist has some sort of discretion to decide whether the fact that women are equally capable of being good lawyers is relevant to deciding whether the Equal Protection Clause forbids a law that prohibits women from being good lawyers. I confess that, assuming the Equal Protection Clause does speak to gender discrimination, I can't imagine how an originalist could *not* deem that fact relevant. It's got to be really relevant, to an originalist deciding an equal protection case, that the favored and disfavored classes are similarly situated in all relevant respects and that there is no rational ground for discriminating between the two. The original meaning of the equal protection clause might (or might not) be indeterminate as a matter of original meaning on whether it speaks to sex discrimination at all, and perhaps there's some arguable originalist reading that doesn't care about whether protected discriminated-against groups are similarly situated to favored groups, in respects that bear on a particular instance of discrimination. (Such a reading would seem odd.) But once you settle on an interpretation I don't know where the discretion to decide if a fact is relevant comes from; rules dictate what facts are relevant to their application.