Confronting Originalism: Truths and Myths

 By Eric Segall

This post was mostly written before the death of Ruth Bader Ginsburg. The country has lost a true hero who in both her personal and professional life lived up to our highest ideals. Her litigation crusades to achieve equal rights for women changed this country forever. She will be sorely missed. I can't add anything to Mike's beautiful Saturday morning tribute.

Last Friday I gave a presentation (virtually of course) at the University of Nebraska on "Confronting Originalism." I outlined a series of truths about originalism that also dispelled numerous myths about originalism. Here are some of the arguments I made.

Originalism is a "They" not an "It"

Once upon a time, back in the 1970's-1980's, we could label originalism a theory of constitutional interpretation arguing that judges should not strike down a law unless the statute quite clearly violated the Constitution's original intent. Today, however, originalism is a family of often conflicting theories that have substantial differences. Here are a few of many examples demonstrating this wide diversity of views among originalists.

There are a few originalists, like Professor Michael Paulsen, who still believe in relatively weak judicial review, but many originalists such as Professor Ilya Somin believe in aggressive judicial review, while others fall along a wide spectrum of opinions concerning the appropriate deference judges should accord other political actors.

Most originalists today believe the correct search is for the Constitution's original meaning but some still think original intent is more important, while still others think it is a combination of the two. 

Some originalists like Professor Randy Barnett think we have a long way to go before the Court truly decides cases in an originalist manner, whereas other originalists like Professors Will Baude and Steve Sachs think originalism is "already our law." 

There is no consensus among originalists on how judges should deal with non-originalist precedent. Some, like Professor Gary Lawson, argue that all or most non-originalist cases should be discarded, while others, like Professor Lee Strang, think even truly originalist judges should take stare decisis seriously and carefully pick and choose which non-originalist cases to keep and which to discard. 

The reason it is so important that originalism is a "they" not an "it" is because of the canard used by Justice Antonin Scalia but oft repeated that "it takes a theory to beat a theory," and although originalism is not perfect, it is more of a theory than non-originalists can muster. Those statements are false because originalism now means so many different things to so many different people. Originalism today is less a theory of constitutional interpretation than a label usually signifying one's right-wing politics.

Professor Lawrence Solum's "Fixation and Constraint" Thesis Does not Unify Originalism in any Way that Matters to Real Cases

To deal with the problem I just identified, most modern originalists have the same response, which goes something like this: Yes we disagree about a lot but we do agree on the core of originalism and the glue that holds it altogether. The common core is Professor Solum’s fixation and constraint thesis which argues that originalists believe the Constitution’s original meaning is fixed at ratification and that fixed meaning constrains judges.

The fixation and constraint thesis, however, is irrelevant to most litigated cases and therefore cannot unify originalists in any way that matters. Sure, parts of the Constitution are fixed and should constrain judges. The President has to be thirty-five, and there must be two senators from each state. But litigated cases almost always involve imprecise text and either little relevant history or highly contested history. We all value freedom of speech and religion, equal protection and due process, and the bans on unreasonable searches and cruel and unusual punishments, but applying those imprecise goals to new modern problems does not involve fixed meaning, because to resolve these cases judges must apply imprecise aspirations to new problems. Are lethal injections cruel and unusual punishment, is obscenity speech, do affirmative action programs violate equal protection, and nearly all other litigated constitutional questions do not involve fixed meaning, and therefore that meaning cannot constrain judges. 

Neither Justice Scalia When He was Alive nor Justice Thomas Today Vote[d] in an Originalist Manner

As I have documented before, neither Justice Thomas nor Justice Scalia vote or voted in an originalist manner. Their votes to strike down numerous state and federal laws on free speech grounds, their affirmative action opinions, their decisions on anti-commandeering, standing, and sovereign immunity, as well as takings, and many more, are unsupported by text and history. These votes are at best supported by prior Supreme Court doctrines and constructions, most of which have no basis in the Constitution's original meaning, intent, or any combination of the two. And the fact that neither Justice Scalia's nor Thomas' votes were even moderately originalist shows yet again that originalism is more a label than a serious theory of deciding cases.

Originalists have not Come to Terms With Slavery and Sexism

I am currently reviewing for a symposium Professor Strang's book "Originalism's Promise." The book is a detailed defense of originalism partly on the grounds that relying on the Constitution's 1789 and 1868 meanings is the best path to "human flourishing." In making that argument, Professor Strang barely mentions that people of color and women were excluded from any formal role in drafting and ratifying the original Constitution and the Reconstruction Amendments. In fact, this issue is ignored or marginalized by most originalists. One would think anyone wanting judges to make decisions today based on a world where only white males had equal rights under the law would develop a sophisticated theory why that is something judges ought to do. Very few originalists deal with this problem in any manner, much less a persuasive one.

Originalists Love to Take Living Constitutionalism Concepts, Give Them New Labels, And Use Them as "Originalist Tools"

The second and third wave of academic Originalists love to co-opt accurate descriptive accounts of living constitutionalist or common law constitutionalist ideas, give them new labels, and then pretend such concepts are actually originalist (when they are not). The interpretation/construction distinction that the New Originalists of the 1990's such as Barnett and Professor Keith Whittington proposed simply acknowledged that, when the legal and non-legal meaning of clear constitutional text merge, such as the requirement that the President be 35, judges have to follow that meaning. Virtually all non-originalists agree with this, but the idea is irrelevant to almost all constitutional litigation. But where the original meaning of the text is imprecise, New Originalists said, then judges have to "construct" constitutional meaning from sources other than original meaning. Non-originalists agree with this idea too. Calling the interpretation/construction distinction "originalism" just collapses any differences between originalism and non-originalism.

A more recent example of this bizarre phenomenon where Originalists use living constitutionalist ideas but call them originalist is the current fad surrounding "liquidation." In Federalist No. 37, James Madison said that "all new laws . . . are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” What Madison likely meant was that the meaning of vague and imprecise texts including the Constitution would have to be fleshed out by judges and other political actors over time. Professor Ilan Wurman, among many others, embraces this idea. In his book on originalism,  he wrote that the “first few times” a judge has to resolve a hard constitutional issue, he will choose “among the competing plausible options.” This choice will “in some sense be arbitrary.”  Over time, however, after “a series of mature deliberations made by many constitutional actors,” similar “cases within that same context will presumably accord such collective decisions determinative weight and the matter will be settled.” 

Yes, of course, this is exactly how common law constitutionalism, which Wurman describes as living constitutionalism, works. The phrase "liquidation" just signifies that original meaning (or intent, or any combination of the two) often runs out and then judges have to use other criteria to decide cases. 

To prove that last point further, Wurman also said this in his book on Originalism: “Originalists recognize that original meaning often requires that the application of the text evolve as modern circumstances evolve.” Notice the passive voice in this sentence. Who is doing that "application?" That would be judges. How? They apply the text differently as "modern circumstances evolve." That, of course, is living constitutionalism.

All of the scholars mentioned in this piece are thoughtful, serious academics, yet they are constantly conflating what most people think is living constitutionalism with what most people think is originalism. Why would they do this? The answer may lie in how modern originalism developed. The original originalists like Robert Bork and Raoul Berger used originalism instrumentally to argue for judicial deference and to attack the Warren Court. But when conservatives more or less took control of the federal judiciary in the 1990's, they wanted to keep the label "originalist" but throw away the deference. As conservative judges issued more and more aggressive decisions those on the right liked, they needed to develop theories to justify strong judicial review for a more conservative time. So all of a sudden it was permissible for judges to use non-originalist criteria in the so-called "construction zone," and of course meaning has to be liquidated over time by judges, and naturally the application of vague texts must evolve over time as facts and circumstances change. Sound familiar? Living constitutionalists have been embracing those justifications for a long time. 

So, in 2020, the most important truth about Originalism is that it is no longer a distinctive theory of constitutional interpretation but a signifier of and justification for conservative or libertarian politics. And this shouldn't be surprising because, after all, law is politics 90% of the way down.