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.