Monday, March 30, 2020

Optimistic Originalism by Professor Stephen Griffin: A Must Read

By Eric Segall

Law professors and other scholars write new articles about Originalism almost every day of the week. The sheer volume of this content makes it quite difficult to separate the wheat from the chaff. Every now and then, however, an article comes out that makes a seriously new and important contribution to the subject matter. Professor Stephen Griffin's "Optimistic Originalism," is one of those articles.

One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and harshly discriminate against women, such as Illinois' law barring women from being attorneys which the Supreme Court upheld in 1872. Yet, few Originalist scholars today are willing to live with those results (and it is unlikely any judge could be confirmed who took those positions). This problem has led to what Griffin accurately describes as "Optimistic Originalism."


Thoughtful and usually careful scholars Michael McConnell and Steve Calabresi are two among many whose historical work Griffin politely but convincingly demonstrates is more optimistic than accurate. McConnell wrote the seminal scholarly article arguing that Originalism and Brown v. Board of Education could go hand in hand. There have been many rebuttals to that claim by other distinguished scholars and Griffin collects those, adds his own original critique to that work, and shows persuasively that one must, in fact, pick sides--one can be a public meaning Originalist, or one can be a supporter of Brown, but one can't be both.

Griffin points to a host of other problems with how public meaning Originalists have looked at historical evidence to support their claims, and argues the following:
From their [public meaning Originalists] point of view, everyone who participated in the debates in Congress, indeed possibly everyone who lived in the nineteenth century, could have misunderstood their own law. I suggest we should be deeply uneasy about rendering irrelevant so much of the actual deliberation that occurred throughout the Civil War and Reconstruction. We should be uncomfortable with denying the reality of the War, so to speak. We should think about the implications of giving ourselves permission to bypass the way history actually happened. Doing this arguably denies us the explanatory and normative purchase that comes with appreciating the genuine difficulty of the constitutional questions that troubled nineteenth-century America. In approaching legal meaning in this way, public meaning originalism makes the fraught process of constitutional change disappear.
Griffin argues throughout the article that public meaning Originalists focus too much on text and not enough on historical context to support their arguments. The practitioners of public meaning Originalism fail to "consult the self understanding of the participants who enacted the amendments, " and thus "take on board an implausible set of meanings."

The reason that public meaning Originalists largely ignore the subjective understandings of the people living in the 19th century is that numerous academic Originalists dropped original intent originalism after a series of devastating critiques launched at it by scholars like Jefferson Powell and Paul Brest. But by minimizing and at times ignoring what people at the time believed the Fourteenth Amendment meant, Griffin persuasively argues public meaning Originalists simply get the history and context of that Amendment wrong. As Griffin says:
With respect to the extraordinarily fraught history of slavery and race in the United States, public meaning originalism tends to trade on our reluctance to grapple with the views of nineteenth century Americans who held views which can be described today as unfortunate (or worse).  I will argue nonetheless that the costs of ignoring the self-understanding of nineteenth-century historical actors are far too high. They necessarily involve an equally questionable erasure of context – especially the knowledge of prior law from which we can still benefit.
This problem shows itself most obviously when public meaning Originalists deal with issues of gender equality. On many occasions on this blog, as well as in my book Originalism as Faith, I have criticized the work of scholars such as Lawrence Solum, Ilya Somin, and Ilan Wurman who claim the reason one can be a public meaning Originalist and still adopt a modern understanding of gender equality is that people living in the 19th century had their facts wrong. They thought women didn't have the skills to be lawyers or manage their own property. I have responded in two ways: first, even if the people at the time had their facts wrong, gender inequality was the original public meaning of the 14th Amendment; and 2) the sexist views of the people living at the time were based more in values than facts.

Griffin makes the same arguments but with more incisive and persuasive historical evidence and reaches the only reasonable conclusion:
it seems plain that the subordinate status of women was the product of an intricate web of value judgments rooted in a vision of society. This normative vision was in turn connected and supported by how the legal system treated women, a system the male proponents of the Fourteenth Amendment did not design it to revise.
Griffin's article is much, much more than just a takedown of public meaning Originalism. There are interesting (and sad) accounts of Reconstruction and why it failed, examinations of constitutional change and how accurate accounts of history are necessary to a full understanding of that difficult subject, and substantive discussions of important constitutional law questions. The reader can decide for herself which of these jewels she enjoys the most.

For me, Griffin's account of the 19th century and its relationship to constitutional interpretation is most important for debunking the claims by many public meaning Originalists that they can optimistically (and inaccurately) use incomplete history to support their modern value judgments. The sad reality is that we have to either reject the original public meaning of the 14th Amendment and live in today's world, or accept that meaning and live by the often horrific values of a time when people of color and women were second-class citizens at best. There simply is no middle ground.