Monday, July 05, 2021

Originalism as Myth

 By Eric Segall

Professor Stephanie Barclay is an associate Professor of Law at Notre Dame. She represents a newer, younger breed of originalist scholar and recently explained why she favors originalism in a longish op-ed in Utah's "longest-running news organization...and the state’s oldest continuously operating business." 

I've met Professor Barclay and she is a charming, smart, erudite academic who has written excellent scholarship about law and religion and other constitutional matters. So there is nothing personal when I say that her op-ed reflects accurately the current sorry state of dominant thought among many originalist academics. Her op-ed shows how originalism these days is chock full of myths.

The Title of Barclay's op-ed is "Why Constitutional Originalism is not Partisan: Originalism Teaches that the Constitution’s Meaning is Fixed at the Point it was Ratified." She begins by emphasizing the fixed meaning point:

When asked to explain [originalism], then-Supreme Court nominee Amy Coney Barrett explained, '...that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.'

Supreme Court Justice Neil M. Gorsuch wrote in Time magazine that the originalist school of thought 'seeks to conserve the meaning of the Constitution as it was written.'

Put another way, originalism teaches that the Constitution’s meaning is fixed at the point it was ratified by 'We the People.' And when that meaning can be discerned, a judge’s job is to faithfully apply that law to the case at hand. Originalists argue that this principle is necessary to have a 'government of laws, not of men.'

Virtually all originalists today agree that the one thing the many different families of originalism have in common is the bottom-line assumption that the meaning of the Constitution is fixed when ratified. But this bedrock premise is demonstrably false when it comes to virtually all constitutional litigation and even constitutional disputes outside the courts. As Professor Richard Fallon of Harvard Law School argues in an excellent recent paper, constitutional provisions simply do not "have a single, factually identifiable, original linguistic meaning."

What does it mean to say the meaning of the Constitution is fixed at ratification? It suggests that judges don't create constitutional law, they simply find it in the fixed original meaning of the Constitution's text. Sure, history is hard, most originalists concede, but at least it provides an anchor that will dissuade judges from imposing their own personal values on the rest of us. 

In her op-ed, Barclay quotes Justice Barrett, who said that she favors originalism because “Courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.” Barclay adds that "if an originalist judge likes and politically agrees with all of her rulings, that almost certainly means she’s not doing it right."

The problem with all this, as Fallon argues in his article, is that most constitutional problems involve imprecise phrases like “equal protection,” “due process,” “free exercise,” "freedom of speech," and “establishment.” These kinds of phrases don't have fixed meanings when applied to hard cases. That is why the New Originalists, in the words of Professor Ilan Wurman in his book on Originalism, "recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.” Similarly, in the words of originalist Mike Ramsey, "[w]hile original public meaning methodology must apply the fixed meaning of the constitutional term, changes in knowledge might change the application of that fixed meaning to particular facts."

Calling the broad principles at issue in most constitutional disputes “fixed” but then saying their applications can change based on new facts and knowledge (read values) is exactly how alleged “living constitutionalists” or folks who believe in pluralistic methods of constitutional interpretation approach constitutional litigation. It is a shameful untruth propounded by some originalists that non-originalists manufacture new constitutional principles outside or separate from the Constitution’s text. No one I know does that. Instead, non-originalists simply believe that “original meaning often requires that the application of the text evolves as modern circumstances evolve,” just like Wurman says.

The litigated Constitution provides general aspirations that most Americans, or at least most lawyers, law professors, and judges, agree with. Who is not in favor of freedom of speech, free exercise of religion, the equal protection of the laws, and granting everyone due process of law? Similarly, who doesn't disfavor cruel and unusual punishments, unreasonable searches and seizures, and double jeopardy? But constitutional law is not a referendum on the desirability of those aspirations. Instead, constitutional law is about whether current governmental decisions violate those aspirations. 

The reality on the ground is that the "meaning" of those vague and imprecise aspirations in 1791 or 1868 cannot be coherently applied to new problems, conditions, and technologies that the people who ratified those provisions never could have anticipated. Sure, there are paradigm applications like prior restraints or laws formally denying police protection to people of color but issues like those simply do not get litigated often enough to matter. What actually gets litigated or disputed are questions that no reasonable person could say are resolved by the so-called "fixed meaning" of imprecise language written centuries ago, Moreover, even if there once existed such a fixed meaning, its applications can change if judges think relevant facts have changed. Given that exit strategy, originalism simply does not occupy a meaningful space separate from living constitutionalism.

The rest of Barclay's op-ed contains a number of myths that New Originalists often rely on to support their embrace of the doctrine. One of the most misused myths is that Justice Elena Kagan adopted originalism as a theory of interpretation during her confirmation hearing. Barclay says that "originalist methodology has been employed at one time or another by all nine of the sitting justices. As Justice Elena Kagan noted in her confirmation hearing remarks, “We are all originalists.”

No, no, no. As I've written before, Kagan is not an originalist in any meaningful sense of the term and scholars and pundits often take her quote completely out-of-context. This is what she actually said:

[The Founders] wrote a Constitution, I think, that has all kinds of provisions in it, so there are some that are very specific provisions. It just says what you’re supposed to do and how things are supposed to work. So it says, to be a senator, you have to be 30 years old. And -- and that just means you have to be 30 years old, and it doesn’t matter if people mature earlier. It doesn’t matter if people’s life spans change. You just have to be 30 years old, because that’s what they wrote, and that’s what they meant, and that’s what we should do. But there are a range of other kinds of provisions in the Constitution of a much more general kind. And -- and those provisions were meant to be interpreted over time, to be applied to new situations and new factual contexts. 

And I think that -- that they -- they laid down -- sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists.

We do not need a theory of interpretation to apply the two senators for every state rule. We just need a political theory that the Constitution is binding on us today. But there is no theory of meaning, law, or interpretation that can coherently apply the "meaning" of imprecise words written in1791 or 1868 to today's problems, especially when judges can change applications when facts change. In every case, our new knowledge and society's changing facts and values will be the deciding factors in constitutional law cases and problems, not resort to an imaginary, make-believe fixed meaning. 

There are yet more myths in Barclay's op-ed that many other advocates of originalism also espouse. Barclay lays the blame for Dred Scott v. Sanford on its alleged lack of originalism:

Some of the most infamous, anti-progressive Supreme Court decisions in U.S. history were written by justices who eschewed an originalist form of interpretation in favor of their own view of what the optimal outcome in the case would be. These include Dred Scott v. Sanford, where Chief Justice Roger B. Taney ruled that African Americans were not citizens of the United States, despite a vigorous dissent by Justice Benjamin Robbins Curtis relying on historical evidence to the contrary.

As I've written before, this claim was also made by Justice Gorsuch in his book "A Republic if You Can Keep It." The claim is false. Here is Justice Taney from Dred Scott:

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

Originalists need to stop pretending that the problem with Dred Scott is its lack of originalism. It is not true.

Finally, other than her reliance on the imaginary fixed meaning idea, the main thrust of Barclay's op-ed is that originalism is not partisan and does not inherently favor conservative results. But, of course, any method of interpretation that privileges values from 1791 or 1868 to ascertain the meaning of imprecise language written back then will usually be anti-progressive today by definition, especially in those many cases where the rights of outsider groups are involved.

But the good news is that today's originalism is so broad, so accepting of change, and so malleable that it is true that one can identify as an originalist, like Professors Akhil Amar and Jack Balkin, and be quite progressive. But all that means is that, like the idea of the fixed meaning of imprecise terms, originalism today is just an empty vessel for judges and scholars to pour their priors into. It is, in other words, a myth.


Unknown said...

On Dred Scott, I found this book quite helpful:
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)

Joe said...

As to the "originalism" of Dred Scott v. Sandford, Taney very well provided a selective view of history. Compare his opinion with the dissents. Taney's opinion is problematic. But, "originalism" alone isn't the problem.

I found Don Fehrenbacher's book helpful though other accounts (like one in Prof. Dorf's constitutional stories book) are good too.


Ilan Wurman was a witness in the latest Presidential Supreme Court Commission public meeting. His solution? Originalism done right! (Shelby v. Holder, says he, did it wrong). Prof. Segall came to mind. And, he did name check Segall in the Q&A portion regarding the level of proof needed for a judge to declare something unconstitutional. Wurman and Segall apparently had various friendly debates over the issues.


There are various ways to define "myth." A myth can be an origin story -- think Adam and Eve or other classical myths -- that is used to explain the source of something. The myth can have some truth in it, like a work of fiction that informs us about human existence in various ways. It helps if one realizes the limits of the myth.

A basic irony here is that some "fixed" view of constitutional law was not assumed by the Founders themselves. It is to me a bit of a lost cause to "just do originalism right!" but one sometimes it is easy to hang originalists on their own petards.

Michael A Livingston said...

I have always been fascinated by how Originalists deal with the Reconstruction Amendments. Presumably they don’t deny their existence. But don’t they affect the overall sense of the entire document?

Kaelik said...

No one said "the problem with Dred Scott is originalism." The point is some very dumb and wrong liars and/or idiots claimed the the problem was a lack of originalism.

But in fact, the majority opinion was written as extremely "originalist."

Saying "he was doing selective history" doesn't change that. All originalists are always doing selective history, except when they give up even the pretense of history like with Shelby County.

An actual litigator said...

It always struck me as odd that originalist judges tend to also disaprove of legislative history for statutory interpretation, since both rely on data beyond the text.

Another thought: originalism doesn’t not live up to its promise in practice. Originalist judges made up the anti commandeering doctrine, the dormant commerce clause, and the idea that commerce clause can’t support a mandate to buy insurance.

An actual litigator said...

Proto-originalists gutted the reconstruction amendments. According to that view, since the amendments weren’t a big deal, they don’t have a big impact on the overall document.

Joe said...

No one said "the problem with Dred Scott is originalism."

I have seen multiple people say that a problem of originalism is that Dred Scott was originalist. Since that word means various things, I mean that "if you actually look at the original history, Taney's opinion was reasonable."

But in fact, the majority opinion was written as extremely "originalist."

Yes, it had a component of "this is what the Constitution was understood originally & even if you don't like it, we are stuck with it."

But, those who appeal to originalism don't just say that. They try to show there is an actual original meaning (or whatever word they use) and apply it.

In that sense, Taney did a selective job of applying the original history (and text for that matter). The dissents also appealed to original history.

Even if McLean and Curtis didn't appeal to some "fixed" meaning, they took the same history and came to a different result. Even if we were "stuck" with the meaning of the Constitution in 1787-91, Taney's opinion is problematic.

Joe said...

Regarding the Fourteenth Amendment, you do see some effort to look at original understanding (again, or whatever word I'm supposed to you), as seen by Thomas when interpreting the Privileges or Immunities Clause.

But, there does seem to be a lot more attention to 1787-91 with even the opinion that incorporated the 2nd Amendment written by Alito, who is less concerned about originalism that Scalia said he was.

Of course, originalism would apply across the board, up to the 27th Amendment. And, Justice Stevens, for instance, partially appealed to original understanding when interpreting the law in a case involving the 21st Amendment. It helped he was alive when it was ratified.

CJColucci said...

As a kind of historical experiment, an article in the Columbia Law Review -- I'm too busy to look it up right now, but it was within the last few years -- tried to ascertain the original public meaning of the proposed, widely debated, but ultimately unenacted federal marriage amendment. On some very important and thoroughly debated issues, the author concluded that there simply was no original public understanding of what the proposed amendment would have meant. Not that there was a shortage of evidence, but that the extensive evidence itself showed no common public understanding on what would likely have been the first issue to be litigated. This wasn't an issue of what could be known or ascertained, because there was a huge pile of evidence and anyone who read the article would have been an adult at the time of the debates and had contemporaneous recollection. The point was ontological, not epistemological -- there simply was no fact of the matter to be known or ascertained.

Unknown said...

As with any amendment, to the extent such changes are not compatible with the original text, an originalist would say such provisions supercede the original with the new meaning fixed at the time of the adoption of said amendment.

Unknown said...

You misunderstand. Originalism is a constitutional-construction doctrine and not a statutory-construction one. I think it should be applied the same, which puts me in a very awkward position of finding fault with Bostock.

An actual litigator said...

My point is that statutory v constitution is a distinction without a difference. Why do notes from debates constitutional convention matter but not debates in the legislative history?

CJColucci said...

Having had a break and an opportunity to look it up, the article I had in mind is Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 Columbia Law Review 529 (2008).

Asher Steinberg said...

Taney does say some strikingly originalist things in Dred Scott, but whether he meant them sincerely or was doing originalism at all correctly is another matter; I rather suspect today's originalists would say the mistake he makes, besides selectively citing founding-era materials that support his preferred result, is conflating evidence of original expected application with original meaning. That isn't to say I would agree with them -- I really have no idea if Dred Scott is good or bad or bad-faith originalism -- but quoting originalist rhetoric from his opinion isn't a sufficient argument that the problem with Dred Scott isn't its lack of originalism, any more than quoting textualist rhetoric from King v. Burwell or NFIB shows that the problem with those opinions (if there is one) isn't their lack of textualism. It's obviously possible for an opinion to be pretty transparently anti-textualist even if its author pleads his fidelity to textualism.

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