Shaquille O'Neal and the New Originalism

By Eric Segall

This Friday and Saturday I'll be discussing my forthcoming book "Originalism as Faith" at the annual Works-in Progress Originalism Conference at the University of San Diego. I am excited and flattered to be included in this event. In this post, I want to discuss one aspect of my book that deals with what many people call "New Originalism."

First, a little background. In the 1970's and early to mid-1980's, Judge Bork, Justice Scalia and Professors Raoul Berger and Lino Graglia, among others, criticized many of the Warren Court's liberal decisions as being inconsistent with the original intent or original meaning of the Constitution. An important element of their critiques was that judges should be deferential to the decisions of other political actors unless the plaintiffs challenging a law could show that it clearly violated constitutional text or the history behind that text (Scalia later abandoned the deference part of that critique at least in practice). In 1980, President Ronald Reagan promised to appoint judges who would "interpret not make the law," and later his Attorney General Edwin Meese argued that judicial decisions that went beyond the Constitution's original intent were illigitmate.

As more Reagan and George H.W. Bush judges came to dominate the federal judiciary in the 1990's, however, the scholarly embrace of originalism began to change to accommodate aggressively conservative judicial decisions. There were three major changes.

First, consistent with a famous speech Justice Scalia gave in 1986, originalist scholars argue that the appropriate search is for the original meaning of the constitutional text, not the intent of the text's authors. Today, most originalists, New and otherwise, rely on original meaning, not original intent.

Second, scholars like Randy Barnett, Keith Whittington, Larry Solum and Jack Balkin argue for a distinction between constitutional interpretation and constitutional construction. Interpretation requires judges to ascertain the non-legal, semantic or plain meaning of the text which they claim is fixed at the time of ratification. But that meaning will usually not decide hard cases because most text that leads to litigation will be vague or imprecise. When the semantic meaning does not clearly point to a decision, judges use the process of constitutional construction to apply the principle at issue (such as freedom of speech or equal protection) to new facts. The scholars who self-identify as New Originalists at first conceded that originalism often runs out in this construction zone, and the judges' other normative commitments would be needed to resolve most cases. Today, some New Originalists such as Barnett and Evan Bernick are trying to put a bit more originalism into the construction zone, but so far, at least in this writer's opinion, without much success.

The third major change is that deference to other political actors is not part of the New Originalists' paradigm. They are much more concerned with judges construing the Constitution correctly than with judges being extremely cautious before striking down laws. In fact, some New Originalists such as Barnett and Ilya Somin argue that the Ninth Amendment and/or the Privileges or Immunities Clause of the Fourteenth Amendment should be used by judges to enforce economic rights that the Court hasn't protected since the long-discarded Lochner line of cases decided by the Justices during the first third of the twentieth century. Judge Bork and Justice Scalia disliked Lochner as much as they disliked Roe v. Wade.

These developments have led some New Originalists to advocate surprising positions. Barnett agrees with Balkin (the lone liberal in the group) that the right to abortion can be justified on an originalist basis. Somin wrote an amicus brief in the Obergefell litigation arguing that state bans on same-sex marriage should be overturned by the Court using originalism. Self-identifying originalists Professors Will Baude and Stephen E. Sachs have stretched the definition of originalism the furthest, arguing that originalism is already our law. They claim that decisions like Brown v. Board of Education, Roe, Lawrence v. Texas (striking down state law prohibiting consensual, private same-sex sodomy), and the same-sex marriage decisions, are all originalist cases. Baude and Sachs have taken originalism almost full circle to embrace both the methods and the results of decisions that most people think exemplify living constitutionalism.

The common strands for all of these counter-intuitive arguments are that 1) vague constitutional provisions like the equal protection clause were originally meant to be applied on an evolving basis taking into account current values and conditions; and 2) originalists are not bound by the specific expectations of those people alive in 1787 or 1868 but rather are bound be the objective meaning of the words they used. Thus, words and phrases like "equal protection" and "due process" will be applied by judges differently over time to new facts, but the meanings of those phrases don't actually change, just their applications. For example, New Originalists have argued that, although the ratifiers of the equal protection clause probably thought that racial segregation and discrimination based on gender were consistent with the Fourteenth Amendment, they were wrong about the facts. Judges today are bound by what the ratifiers wrote, not what legal effect they expected the words to have.

What the New Originalists have done (and of course not all modern originalists are New Originalists), is define originalism in a way that makes it virtually indistinguishable from living constitutionalism and other non-originalist judicial methodologies. Professors Tom Colby and Peter Smith have written a series of articles explaining that by interpreting the level of generality of vague constitutional provisions at a high level, and ignoring what the ratifiers expected to happen, originalists can advocate for virtually any result in any case. All of the deference and limiting of judicial discretion that Bork, Meese, and the early Scalia argued were the hallmarks of originalism have been lost by New Originalist  theory.

Professors Smith and Colby are right, but I want to make a different point. New Originalists have defined originalism in a way that makes helpful and important conversations about originalism quite difficult. This disconnect has never been more important because the President of the United States has promised to only nominate "originalist" judges. But what exactly does that mean (not to Trump, who knows nothing about the subject, but to the people being nominated, United States Senators, and the American people)?

There can be many different legitimate versions of originalism, but allowing judges to define constitutional text in a way that permits them to apply it differently today than yesterday without the constraint of originalist-era evidence is simply not one of them. And here is where Shaquille O'Neal comes in. The statement Shaq is tall is not objectively true because tall (as Balkin points out in his paper for the San Diego conference) is a descriptor, not a statement of fact. But if we can't all agree that Shaq at 7'3'' is tall, then we cannot have a discussion about what tall means. We have no shared premises to start our discussion. In that sense, we can say that the statement Shaq is short is a non-starter.

The same is true for New Originalism if cases like Brown, Roe, Lawrence, and Obergefell are embraced by people who claim to be originalists. In Obergefell, Justice Kennedy specifically rejected the premises that make originalism a distinctive theory of constitutional interpretation: "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." Yet Baude and Sachs use Kennedy's rejection of originalism as showing "originalism is our law." This is like saying Shaq is not tall. 

So one of the points I hope to make in San Diego, and that I support at length in my book, is that originalism in the hands of many (certainly not all) modern scholars no longer means what most people think it means. This makes it easy for politicians to say they are appointing "originalist" judges and for scholars to don the mantle of originalistm as a symbolic gesture, when all they are really doing is employing a values-driven approach to constitutional law, just like the Warren Court did (although most of the time embracing different values). 

In other words, there is little originalism left in the New Originalism, making it difficult for scholars, judges, and anyone else interested in constitutional law to have meaningful conversations about originalist methods of constitutional interpretation. It is like saying Shaq is not tall.  People can of course describe him any way they want to, but describing Shaq as not tall would make a serious discussion of who else is tall more challenging than fruitful.