Originalism on the Ground

By Eric Segall

Over the last two weeks, Mike has engaged in a high-brow discussion with, among others, Professors Larry Solum, Mike Ramsey and Paul Horwitz, concerning the role originalism plays and should play in constitutional law. To varying degrees, the various essays raise deep and interesting philosophical questions about what it means for judges to accept or reject originalism as a theory of constitutional interpretation. For folks with a deep interest in the topic, Mike’s original essay and the various rejoinders and replies provide excellent material to ruminate on the academic topic of originalism.

But, in terms of actual constitutional litigation as practiced on the ground, I have a few questions for those who consider themselves to be originalists in any meaningful sense of the term. By "meaningful," I mean someone who believes originalism requires something more than specific constitutional phrases must be construed specifically while vague ones allow for "construction" over time.

1. Isn't it true that much current free speech doctrine, including but not limited to, the law of defamation, commercial speech, and campaign finance reform cannot be (and in any event was not) justified by resort to original meaning? Do you oppose cases like New York Times v. Sullivan, Citizens United, and Central Hudson?

 2. If your answer to number 1 is that the neither the original meaning nor the text of the First Amendment forbids the results in those cases, and therefore the Justices were justified in “constructing” the meaning of free speech (within broad parameters) in those cases, please explain how that method of constitutional interpretation differs from “living originalism” in any sense that matters for constitutional litigation. 

3. Virtually the entire Rehnquist Court’s “new federalism” jurisprudence in cases like Seminole Tribe, NY v. United States and Printz v. NY is inconsistent with both text and history. I demonstrated that point here: Do you oppose these cases?

      4. If your answer to number 3 is that general structural principles and "postulates" underlying the 10th and 11th Amendments support the cases mentioned in number 2, please explain how those “postulates” differ from “penumbras and emanations?”

      5. Why do we (academics) spend so much time trying to justify or criticize originalism when so many landmark Supreme Court cases ignore the doctrine almost completely? Here is a partial list:

a.       Bush v. Gore
b.      Korematsu v. United States
c.       Roe v. Wade, Planned Parenthood v. Casey
d.      Shelby County v. Holder
e.       All of the Court’s Affirmative Action Cases
f.        Most, maybe all, of the Court’s expressive conduct/speech cases
g.       Most, maybe all, of the Court’s gender discrimination cases

6. Do you agree or disagree that originalism played no or a marginal role in those cases?

7. Do you believe Jack Balkin, who wrote a book called “Living Originalism,” and who believes that Roe can be justified on an originalist basis, is really an Originalist? If your answer is yes, please explain. If you answer is no, any theories as to why he would call himself an "Originalist?" Mine has something to do with a Trojan horse.

8. My last three questions all revolve around this important passage from Larry’s response to Mike’s essay addressing Larry’s three questions:

“I believe that the best understanding of "originalism" is that it is a family of constitutional theories that is unified by agreement on two ideas.  The first of these ideas is the Fixation Thesis:  the communicative content (or linguistic meaning) of the constitutional text is fixed at the time each provision is framed and ratified.  The second idea is the Constraint Principle: constitutional actors should be constrained by the fixed communicative content of the text.  Different originalists affirm different versions of the constraint principle, but I believe that almost all originalists agree that the minimum level of constraint is constraint as consistency--constitutional actors may not act in a way that is inconsistent with communicative content of the text.”

I do not understand how either the Fixation Thesis or the Constraint Principle applies to constitutional provisions with hopelessly vague language and contested histories. I am thinking about bans on “unreasonable searches and seizures,” the “establishment of religion,” the denial of the “equal protection of the laws,” and “cruel and unusual punishments,” among many others. I would like to know how you would expect judges to, for example, be guided by either of these Principles when deciding whether lethal injections that cause X amount of pain we know about and possibly Y amount of pain we don’t know about, constitute “cruel and unusual punishment” or whether the Constitution extends habeas protections to places like Guantanamo Bay where the United States does not exercise formal sovereignty but does exercise complete control. I could give another 1000 examples. Is Larry writing for judges or someone else?”

9. Am I an originalist if I adopt the following position, first articulated in 1900 in the first ever law review article to use the phrase the “Living Constitution?”
"The separation of the law from the facts is a difficult but transcendently important task. For while denying in the most unqualified terms the notion that the Constitution is capable of a varying construction, we may often be swayed by the same arguments advanced in favor of that heresy, and even reach the same results, but in a perfectly legitimate way, simply by a careful discrimination between matters of law and fact. The law of the Constitution remains forever unchanging: the facts to which it must be applied are infinitely various."

In other words, if I concede that the meaning of the Constitution is “fixed” at the time of adoption, and that judges are bound by that meaning, but that the results in constitutional cases may/will change from time to time because the factual and social context constantly changes, so that what is “equal” or “unreasonable” or an “establishment” may also change, am I an “originalist,” under these two core principles?

10. If the answer to number 9 is yes, is there any difference for constitutional litigation between originalism and living constitutionalism?