Thursday, October 03, 2019

The Problem Isn't Naming Originalism: A Response to Professor Rappaport

By Eric Segall

Professor Michael Rappaport recently wrote an essay for the Originalism Blog (a site that has been quite generous in publishing my critiques of originalism) titled "The Challenge of Naming the Modern Originalist Movement." In this piece, Rappaport concedes that there are many internal squabbles within the originalist movement and that these disputes can lead to different theories all labeled originalist. He also, suggests, however, that most originalists coalesce around Professor Larry Solum's two bedrock principles allegedly underlying all or most originalist theories: the fixation thesis (the original meaning of the text is fixed at ratification); and 2) the constraint thesis (that meaning constrains today's political actors, including judges). 

Rappaport discusses the various labels that originalsts use, such as New Originalism or his own Original Methods Originalism, and concludes that originalists need to be more sensitive to the naming of their respective theories and try to find more common ground. The entire essay, however, fails to wrestle with the two major defects with Originalist theory today, which are emphatically not a labeling problem. The real defects are that there is no coherence among different originalism theories, and that the fixation and constraint principles don't come close to providing a glue that can bind varying originalist theories together.

It is common ground that originalism is meant to help judges decide hard constitutional cases. But, as I have set out many times on this blog, academic originalists disagree strongly on what originalism requires judges to do. Here is a quote from Professors Thomas Colby and Peter Smith which is spot on:

A review of originalists’ work reveals originalism to be not a single, coherent, unified theory of constitutional interpretation, but rather a smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label. The image of a monolithic theory standing tall and firm, deflecting countless hapless attempts to knock it down, is inaccurate. The more accurate picture is one of a collection of rapidly evolving theories, constantly reshaping themselves in profound ways in response to devastating critiques, and not infrequently splintering further into multiple, mutually exclusive iterations.

Some originalists believe originalism is already our law, most believe it is not. Some originalists believe in strong judicial deference while some argue for almost no deference. Some originalists believe the proper search is for original meaning. Others think the appropriate focus is original intent. And no originalist has yet articulated a well-accepted theory by other originalists as to how to fit non-originalist precedent into a coherent and consistent originalist philosophy. 

More specifically, as I've written before
llya 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 (possibly including cases like Brown and Obergefell). Most originalists today do not agree with that view.
These aren't labeling differences but major substantive disagreements.

Rappaport does not seriously address any of that except to say that originalist theory is grounded in Solum's fixation and constraint principles. But these principles are inconsistent with the view of most (not all) originalists that, as Solum has repeatedly said, "although meaning is fixed, applications of meaning to fact does change--necessarily so, since facts themselves change over time." Or as Ilan Wurman has said“Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve." Or as originalist Ilay Somin has said to justify courts striking down same-sex marriage bans on an originalist basis:
nearly all originalists recognize, that methodology is entirely consistent with updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.
There is not a dime's worth a difference between a judge or scholar saying the constitutional text's meaning changes (inconsistent with the fixation thesis), and saying applications of that text to the same legal issues can change if facts change. Given that we live in a completely different world than the one inhabited by the people of 1787 or 1868, if changed facts can change applications of the same text over time, originalism and living constitutionalism merge, and the label "originalist" becomes an empty term.

Numerous originalist critics such as Mitch Berman, Jamal Greene, and of course Colby and Smith (as well as Mike) have made these points before. So far, not a single originalist has tried to seriously wrestle with these problems. That is the real problem (not labeling) for originalism today.


Shag from Brookline said...

It has been said, including by Larry solum at his Legal Theory Blog, that it takes a theory to be beat a theory. With so many evolving theories of originalism over the years, perhaps originalism is taking a beating. But originalism serves as an umbrella of protection for these various evolving theories. This leads to quite a bit of humor in coming up with names for the differing versions of originalism. Perhaps we might look at FIXATION in psychological terms as opposed to FAITH. Perhaps it's the ID, the EGO, of the label originalist.

I'm pleased that Eric has responded to Mike ("I'm not Ramsey") Rappaport's essay. Over the years I have observed the differences between Rappaport and Ramsey at the Originalism Blog, sometimes identifying Mike ("I'm not Rappaport") Ramsey as perhaps not being in lockstep with Rappaport. Originalism is a leaky umbrella.

Joe said...

Originalism debates have a feel of medieval religious debates.

Certain things are granted. They are dubious, but those are the rules. So, we have some form of Rube Goldberg device set up to allow other things in without "violating" the givens.

Over the years, going into the weeds of these debates doesn't change my overall opinion here. The debates have a place and Prof. Segall has made it a specialty (including writing a book with a somewhat disconcerting orange cover). More power to him. More stuff for Shag.

Fred Raymond said...

This whole "originalist" thing has just seemed bogus all along. A bunch of Judges and Justices who follow their own preferences just as much as anybody else. It's akin to declaring one's self to be a "stable genius" as though the act of declaration makes it so.

Joseph said...

I think disagreement and refinement of the theory is healthy.

Coyote said...

You spelled Ilya Somin's name wrong in one case in your post here, Professor Segall! You should fix this.

Anyway, though, this is a good article and I would like to propose a solution to this: When it comes to the question of whether or not a constitutional amendment implicitly repeals an earlier part of the constitution, we want to be really, really sure (as opposed to merely being 51% sure or "debatably sure") that this amendment indeed does this. In turn, what this would mean is that if there is any reading of this amendment that allows it to coexist harmoniously with the relevant earlier part of the constitution (to the greater extent possible), then it is this reading of this amendment that should be adopted. So, for instance, if the original US Constitution (as in, the 1787 text) explicitly stated that US states are allowed to segregate their schools by race and to have anti-miscegenation laws, then the 14th Amendment should not be viewed as implicitly repealing this part of the original US Constitution unless one is absolutely sure that the 14th Amendment was *universally* understood by its contemporary supporters as actually having this effect. One could adopt a similar criteria in regards to the constitutionality of statutes: As in, unless there was (or would have been) a *universal* agreement among contemporary supporters of a particular amendment that it would invalidate a particular statute, the constitutionality of this statute should be upheld regardless of just how repulsive it is. This would essentially be similar to your own approach, Professor Segall! The one tricky question here, of course, would be how exactly one should prevent the US federal government from overstepping its authority in regards to this. After all, if one applies an extremely deferential approach to both state legislation and federal legislation (as opposed to merely state legislation), then what this could have resulted in would be living constitutionalists using the US Congress (plus the US President's signature) to push through things such as legalized abortion nationwide and legalized same-sex marriage nationwide even though contemporary supporters of the 14th Amendment would have likely believed that the US Congress lacks the authority to do these things for the entire nation (as opposed to merely for Washington DC).

Coyote said...

BTW, my own preferred view of originalism is what I would like to call "original scope originalism". Basically, "original scope originalism" would ask these two questions:

1. What exactly was an amendment intended to achieve?
2. Just how much discretion did contemporary supporters of a particular amendment intend to give future generations in regards to interpreting this amendment?

Granted, there would still be the problem of multiple intents here, but this problem can be reduced by asking "What exactly would two-thirds of the US Congress and three-fourths of US state legislatures have actually approved of when they were passing and ratifying the relevant constitutional amendment?" Alfred Avins, for instance, used such an approach to argue that there was not a sufficient consensus among contemporary supporters of the 14th Amendment to outlaw segregated schools and that therefore the 14th Amendment shouldn't actually be read as outlawing segregated schools.

Coyote said...

"2. Just how much discretion did contemporary supporters of a particular amendment intend to give future generations in regards to interpreting this amendment?"

I should have said "in regards to interpreting and applying this amendment?" here.

Shag from Brookline said...

Perhaps we might then expect "original scope originalism" to evolve over time into "new original scope originalism"?

Regarding Coyote's views on amendments to the Constitution, Coyote seems to be challenging Brown v. Bd. of Educ. (1954, Unanimous, with a single opinion) as unconstitutional.

Coyote said...

From the perspective of "original scope originalism", Yes, Brown v. Board of Education probably was wrongly decided. I don't see why exactly that should be fatal to this theory, though. After all, in a scenario where the original US Constitution (the 1787 text) would have explicitly allowed US states to have segregated schools and anti-miscegenation laws, are you going to argue that any theory of interpretation that doesn't use the 14th Amendment to implicitly repeal this hypothetical part of the original US Constitution (regardless of original intent) should automatically be rejected? If not, you shouldn't automatically reject "original scope originalism" simply because it reaches the wrong results in cases such as Brown and Loving.

As for Brown (and Loving) being 9-0 decisions, well, Pace v. Alabama was also a 9-0 decision and yet I'm presuming that you believe that it was wrongly decided, correct? Sometimes the entire Supreme Court could make a ruling that one disagrees with.

Also, why exactly would "original scope originalism" evolve over time into "new original scope originalism"?

Coyote said...

For the record, one could obviously reject original scope originalism, but rejecting this theory simply because it produces wrong results in certain cases is a terrible reason to reject this theory unless one is also willing to strike down explicit constitutional text (for instance, such as in my hypothetical scenario above where the original US Constitution (the 1787 text) explicitly allows US states to segregate their schools by race and to have anti-miscegenation laws) when this explicit constitutional text stands in the way of achieving a good outcome.

Interestingly enough, courts in some other countries are (or were) willing to strike down explicit constitutional text as a result of their adoption of the unconstitutional constitutional amendment theory, but this theory doesn't actually appear to have been widely accepted in the US yet. More discussion in the US about this theory would probably be beneficial.

Shag from Brookline said...

How are these competing "theories" tested? The "theories" keep arising. Are are these really "hypotheses"?

Coyote said...

What do you mean by "hypotheses"? I do think that testing theories using hypothetical scenarios is a good way to see if one is actually consistent in regards to the arguments that one advocates. For instance, if one argues that we should embrace living constitutionalism because it produces good results, one could naturally ask whether we should also be allowed to overrule constitutional text using another piece of constitutional text from a different time if doing this is likewise going to produce good results. If the person being questioned is going to answer No, then one can naturally accuse him or her of being inconsistent in regards to this.

Shag from Brookline said...

A hypothesis is a thought pulled out of a person's mind but a "theory" is supposed to have more meat on the bones. Of course one can call his/her hypothesis a "theory." But that won't make it a theory. It may merely be an opinion. Is there a 40-60 page law review/SSRN article out there supporting a legal "theory" of "original scope originalism" or just a passing blog comment? Recall that the originalism movement began in the 1970s by Ed Meese, in tandem with the misnamed "The Federalist Society" objecting to theWarren Court's judicial activism. Originalism started with original intent, evolved with original understanding, then original expectations then, with much criticism, advanced to original meaning originalism, and seems to continue to evolve. The Warren Court's foundational decision was Brown v. Bd. of Educ. (1954, Unanimous, one single opinion) that sparked the civil rights movement that culminated with the Civil Rights Acts of the mid 1960s. The conservatives/libertarians seemed to work in tandem with the originalism movement. Perhaps the conservatives led by Ed Meese and misnamed "The Federalist Society" conservatives/libertarians felt menaced by the civil rights movement started by Brown.

Over time, many originalists embraced Brown as in compliance or consistent with originalism as it evolved, at least until recently with the efforts of president Trump to try to undo much of the accomplishments of Barack Obama, America's first black president, during Obama's two full terms. Is Brown now being challenged by an evolving "theory" of originalism that might be called "White Supremacy Originalism"? The current leading "theory" of originalism, original meaning originalism, labeled the New Originalism or the New New Originalism seems to have accepted Brown. But is that changing now under president Trump with Trump's racial views? Is originalist "theory" evolving under Trump against the civil rights movement that started with Brown?