Discretionary Originalism: A Short Response to Professor Solum

By Eric Segall

On Wednesday, Professor Lawrence Solum kindly "recommended" a forthcoming essay of mine in the George Washington On-Line Law Review. This piece argues that Solum made a concession in his latest article on Originalism that demonstrates there is no meaningful difference between the so-called New Originalism and Living Constitutionalism. On his blog, however, Solum also said the following about my argument:
I would note that Segall's contention that "current originalist theory" gives judges "discretion" "to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified" does not accurately represent my understanding of my own views.  The Constraint Principle requires judges to adhere to the original meaning (communicative content) of the constitutional text as was fixed by linguistic and contextual facts at the time each provision was drafted, framed, and ratified.  And the Constraint Principle requires constitutional actors to engage in constitutional construction on the basis of the actual adjudicative and legislative facts at the time of application.  There are important questions regarding the division of fact finding responsibility regarding legislative facts as between different officials (e.g., appellate and trial judges versus executive and legislative officials), but I believe Segall is simply wrong in his characterization of my view as allowing "discretion"--as I understand the meaning of that term. [My italics].
I greatly appreciate the engagement, but I also feel compelled to note that this disclaimer fails to wrestle with the central evidence and arguments in my essay.

I discuss numerous New Originalists in that piece, but as to Solum specifically, I quote this paragraph from his own article:
In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender…Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. [Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.
I can't imagine what Solum means by this if not that judges, when confronted with the original meaning of the constitutional text as applied to a specific problem, can disregard that meaning if "beliefs about facts" have changed since the time the provision was ratified. But, of course, in any modern case there are likely to be many relevant facts that have changed since the original constitutional text was written so long ago. Which facts are relevant enough to displace the original meaning as applied to specific outcomes through what Solum calls "constitutional construction" will give originalist judges enormous discretion in most if not all constitutional cases. 

I make a much longer form of this argument in my essay if people are interested.

For now, it is enough to end with a quote from that essay, and for me to add that it would aid my understanding if Solum were to say more about what he means by "discretion."

I wrote:
When the text is imprecise (virtually all constitutional cases)  and in a world where judges are allowed, actually required, to consider changed factual circumstances since 1787 and 1868, original meaning is neither fixed nor constraining. Another way of saying this is that most originalists now argue that even if we know how the people living at the time expected the text’s original meaning to be applied to anticipated issues, judges still aren’t bound by those expectations if the people at the time were mistaken about their factual assumptions. Such an argument can be made in just about every litigated case, demonstrating that the original meaning of the Constitution cannot yield even modestly clear outcomes in virtually every litigated case....