Originalism Without Slavery and Sexism is a Dangerous Fiction and Other Absurdities: A Response to Professor McGinnis

 By Eric Segall

Noted Originalist John McGinnis of Northwestern University recently wrote a blog post with a title that, when I read it to my non-lawyer wife, made her incredulous. The title was "Can Modern Originalism Save American Constitutionalism?" Isn't "modern originalism" an oxymoron, my wife asked me. It was a good question but I was too busy being mad at the rest of the piece to answer her directly. Much that is wrong with "modern originalism" is reflected in McGinnis's piece.

McGinnis begins by quoting Sir Roger Scruton, who compared the French and American Revolutions. The former was intended to "transcribe into political ideas that had previously no overt presence there and which owed much to the abstract arguments of philosophers," while the latter "was designed to guarantee to the people what they had once enjoyed. It was a recipe for an already established practice rather than a recipe for a new order of things."

So right off the bat, anyone defending the American Constitution as "a recipe for an already established practice" needs to address the evils of slavery, complete subjugation of women, and the limited franchise at the time our Constitution was ratified. As usual, however, and like most originalists, new, old, and in-between, there is no mention of those pernicious practices in McGinnis's post. More on that failing later.

After comparing the two revolutions, McGinnis says the following:

The struggle over the interpretation of the United States Constitution is profitably understood as a debate over whether the United States should retain a constitution whose meaning was fixed by reference to established practices that animated the American Revolution or whether it should be changed into a constitution more closely resembling the French Declaration of Rights.

What does it even mean to suggest that textually imprecise provisions in the Constitution such as those prohibiting the government from abridging freedom of speech, denying anyone due process of law, imposing cruel and unusual punishments, forbidding unreasonable searches and seizures, and establishments of religion have a "fixed meaning?" This is simply incoherent when it comes to real cases in front of real judges. What implications does the internet have for personal jurisdiction? Are lethal injections cruel and unusual punishments? Which modern technologies constitute unreasonable searches? And is paying union dues "speech"? These are all questions that cannot be answered by reference to the Constitution's "fixed meaning" because of course none of the relevant constitutional provisions has a fixed meaning, and the founding fathers were well aware of that fact.

After suggesting that words and phrases without a fixed meaning have a fixed meaning, McGinnis goes on to say the following:

One of the distinctive features of living constitutionalism has been its abstraction of rights. Substantive due process, for instance, has on this view become a fount of undefined, fundamental rights. And what constitutes 'fundamental' is a heavily philosophic question whose content is influenced by the intellectuals of the day.

To support this insult to living constitutionalism, McGinnis uses substantive due process which, in reality, has been used by the Court to find protected constitutional rights on very rare occasions, usually involving reproductive and family rights. But the more important point is that the alleged "abstraction of rights" assigned by McGinnis to "living constitutionalism" is both suggested by fidelity to the abstract rights-protecting provisions of the Constitution and mimicked by so-called "originalists" of all stripes who use relatively clear structural provisions of the Constitution to place limits on what the federal government may or may not do. Famously, the Eleventh Amendment prohibits suits against a state by citizens of "another" state, but originalist judges and scholars have ignored this clear provision to prohibit suits against states by citizens of their own states. Now that's living constitutionalism. 

Similarly, the Tenth Amendment quite succinctly states that all powers not given to the federal government are reserved to the states or to the people and, when read in conjunction with the Supremacy Clause, it is textually obvious that when the federal government exercises a power given to it by the Constitution, the federal government is supreme. There is not a syllable in this clear allocation of powers to the effect that the federal government cannot use its enumerated powers to require states to implement federal programs, yet most originalists defend that very limitation on "commandeering." This judicial and scholarly invention is a Constitution in progress, not one with a "fixed meaning."

McGinnis then concedes that some forms of originalism also tend to make rights abstract and he points, not only to Professor Jack Balkin's "thin" definition of originalism (narrator, Balkin isn't an originalist), but even to some members of the so-called New Originalist movement who construct

enumerated rights at high levels of generality or purpose—so high that, again, they no longer reflect the established practice, but some grander philosophy. Using such methods, some modern originalists have found a right to same-sex marriage in the Constitution or discovered that the Fourteenth Amendment protects against sex discrimination (despite the absence of a clause in that Amendment recognizing such discrimination).

It is true that the original meaning of the 14th Amendment was not intended to protect against gender discrimination but the text of that Amendment prohibits the government from denying "any person" the "equal protection of the laws." Taking women out of that protection is elevating the subjective intentions of the people at the time over the text of a duly enacted constitutional provision. Once we make that move, almost everything is up for grabs.

After insulting various other groups of people who understand that imprecise constitutional text must be fleshed out over time (by whom is a question beyond the scope of this post), McGinnis ends his essay as follows:

Interpreting the Constitution as a set of abstractions, as did the French revolutionaries and their American living constitutionalist successors, opens a channel for infusing this new ideology into our venerable charter of government. In contrast, originalism correctly conceived anchors the tradition of constitutionalism and provides the most effective protection against this latest enthusiasm of the intellectual class.

McGinnis's constant, demeaning, and irritating references to the "intellectual class" is an interesting move from a constitutional law professor at one of America's leading universities who waxes on about the French Revolution, but I'll leave that issue for another day.

Apparently the "latest enthusiasm" of the "intellectual class" is equal rights for women under a constitutional provision that suggests equal rights for all persons. Of course, McGinnis is right that in 1788 and 1868 women were nor considered full "persons" under the law, which makes his romantic nostalgia for such a time just a tad troubling. More importantly, in his post McGinnis also (modestly) claims that his and Professor Mike Rappaport's method of originalsim, which they call "Original Methods Originalism," "best captures early America." In their book, they argue that the best law making occurs during moments of constitutional debates, such as those in 1787-88, and that judges can use only the methods approved by the people living at the time to interpret the Constitution today. 

I have previously argued that it is quite alarming for two legal scholars to argue that a lawmaking process that disqualified virtually all people of color and women should be looked at so approvingly. Their responses, that the Reconstruction Amendments did away with racial discrimination, and that the ERA would have passed had the Court just rubber stamped facial discrimination against women, are wholly unsatisfactory because none of that contradicts the obvious idea that a different and better Constitution might have been ratified by people who didn't own other human beings and thought women were the property of their husbands.

I am not here to praise or damn the French Revolution and, frankly, McGinnis should also stay away from that business. I am here to say that originalists often overlook or minimize how terrible America in 1789 and 1868 was for people of color and women, and they should be careful about describing those eras of American history with such admiration. Additionally, as I have written many times before, originalism is not the tool to limit judicial discretion given the imprecise nature of the litigated Constitution. The only tool that can meaningfully constrain judges is strong deference to other political actors--a tool modern originalists (as oxymoronic as that is) fail to wield as often as non-originalists. McGinnis's descriptions of the divides between so-called originalists and so-called living constitutionalists are as unpersuasive as his over-romanticizing of our founding period is deeply troubling.