The Concession that STILL Dooms Originalism

 By Eric Segall

One of the most cited articles about constitutional interpretation in recent years is the boldly named, "Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate," by the Godfather of New Originalism Professor Larry Solum. The piece is complex and much can and has been said about it by it other theorists but I want to focus (again) on one aspect of the article that I wrote about previously because that part of Professor Solum's article was also used by Professor Randy Barnett in his recent and interesting review of Adrian Vermeule's book "Common Good Constitutionalism." 

First this post talks about Professor Solum and then Professor Barnett.

In his article, Professor Solum quoted my previous work talking about Professor Barnett's New Originalism. This is Professor Solum quoting me in his seminal article on the "Great Debate."

The problem with Barnett’s originalism is that constitutional litigation almost always involves vague constitutional provisions that have uncertain meanings in the context of our ever-changing society. When is the last time someone litigated the requirements that there be two Senators from every state, that the President be at least thirty-five, or that jury trials are required if more than twenty dollars are at stake? Most cases that end up in front of judges implicate vague phrases like 'equal protection,' 'due process,' 'establishment of religion,' and 'cruel and unusual punishment.'

Professor Solum then made the following concession:

From this premise, Professor Segall draws the conclusion that originalism may be indistinguishable from living constitutionalism. The key to understanding Professor Segall’s metalinguistic argument is identification of his crucial premise—which is that all, or almost all, constitutional issues that are actually litigated involve indeterminate constitutional provisions. If it were true that the original public meaning of the constitutional text was radically indeterminate in all litigated cases, then it would follow that the Constraint Principle would have no constraining force, hence originalism and living constitutionalism would not be meaningfully different. 

Professor Solum then said that "the claim that the communicative content of all the actually litigated clauses is radically indeterminate is an empirical one. Redeeming that claim would require actual originalist work, employing a rigorous originalist methodology—something that neither Professor Segall nor any other critic of originalism of whom I am aware has done."

Similarly, Professor Barnett said the following responding to Vermeule's claim (virtually identical to mine) that the original meaning of the litigated Constitution is too "thin" to make originalism possible (at least without great deference): "But the claim that the text’s original meaning is this 'abstract' or 'thin' must be established with evidence, not merely stipulated. Like most non-originalist law professors, however, Vermeule is an armchair originalist who simply asserts, rather than proves, that this fixed constitutional meaning was highly abstract."

To understand why these claims by Professors Barnett and Solum are simply wrong we first must remember what is a core principle of New Originalism. Under the New Originalist approach, and in the [in]famous construction zone, judges have discretion to bring an almost endless array of post-ratification facts and changed cultural values into consideration when resolving constitutional cases, diluting any meaningful constraining effect of the text’s original meaning. For example, I previously quoted Professor Solum himself for the following proposition shared by most New Originalists: 

[I]n 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 [Privileges and Immunities Clause] 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. The Constraint Principle does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.

Notice that Solum does not merely refer to changed facts but "changing beliefs about facts." This idea is similar to Professor Barnett's belief, echoed by almost all New Originalists, that judges today can discard expected applications, like women are not protected from discrimination in public employment by the 14th Amendment, if facts (read values) have changed (enough). It is on a similar principle that Professor Barnett once expressed that he "is sympathetic" with Professor Jack Balkin's claim that Roe v. Wade could be justified on an originalist basis even if no one in 1868 thought that abortion was a constitutionally protected right. 

But the constitutional text that gives rise to almost all modern lawsuits was ratified in either the late 18th or middle 19th centuries, when our country was different in most material ways than today relevant to lawsuits that are brought today. What all of that means is that this form of originalism (without super-strong deference) is indistinguishable from living constitutionalism, or for that matter common good constitutionalism. There is simply no constraint on judges from this form of originalism in litigated constitutional cases.

Again, as I wrote in direct response to Professor Solum:

If we allow constitutional law to evolve as facts change, and to my knowledge no Originalist has persuasively set forth a way to distinguish facts from values, then we can always pick and choose new facts (or values) to alter whatever original meaning (if any) we think is part of the Constitution. And that is exactly what New Originalism allows and how judges behave. In the words of Professor Ilan Wurman, 'Originalists recognize that original meaning often requires that the application of the text evolve as modern circumstances evolve.'

Now, in saying that, I do not deny the existence of some factual propositions (e.g., "human embryos have human DNA") that are easy to distinguish from propositions that assert values (e.g., "medical abortion of a human embryo is the moral equivalent of murder"). What I mean is that in nearly all of the contested cases, changes in beliefs about facts tend to be connected to changes in values. In Solum's example, changes in factual beliefs about the capacities of women were closely intertwined with changes in values about gender equality. Given that slipperiness, the concession regarding facts and even beliefs about facts makes originalism extremely malleable.

I, of course, do not have to prove that I am right in 100% of cases (though I likely am). But if my account is right in 80-90% of litigated constitutional law cases, and that is certainly true, then New Originalism is indistinguishable from living constitutionalism. Neither Professor Solum nor Professor Barnett, who are both well-aware of my views, have ventured a response other than "prove it." 

But given their view that "changing beliefs about facts" allow judges to discard known, expected applications and even meanings by the ratifying generations (because expected applications are among the most critical data for discerning original meaning), and those generations lived centuries ago, it is their burden, not mine, to show that imprecise constitutional texts with contested histories can be constraining when judges are allowed to reverse the original expected applications of those texts simply because "beliefs about facts" have changed. Judges can't reach any decision in every case based on this approach but they certainly can reach a result for either party in any litigated case by simply saying, "these or those facts, or beliefs about facts, have changed."

The non-delegation doctrine is all the rage today among many originalists. But even if there was a strong originalist basis for that view (and there isn't), a judge could always say, "well, we now know what caused the New Deal and that changes how judges deal today with the expected non-delegation doctrine.” Similarly, let's say the unitary executive theory has a sound originalist basis. But no one in 1789 could destroy the world by pushing a few buttons. That new fact could make a huge difference in how we view the war-making power and under what circumstances the President can fire people or not in the chain of command or whether the President can use offensive weapons to kill US citizens abroad who we think are are terrorists but no court has so found. The point is there are always changing facts relevant to all litigated constitutional cases that involve text written so long ago. And remember, a judge does not have to find the facts have actually changed, just that beliefs about facts have changed.

Neither Professor Solum nor Barnett has ever responded to this argument, though they are well aware of it. In fact, I made this argument in a room they were both in at the San Diego Originalism Conference in February. 

Why is all of this so important you may ask? The reason is because what constitutional theory truly needs right now is for those writing in this area to recognize that any method of constitutional interpretation that does not contain a strongly deferential component inevitably leads to judicial imposition of today's value judgments. How else to decide if "beliefs about facts" have changed enough to allow judges to discard original applications or meaning. Therefore, it is imperative that we avoid the distraction of a spent and unnecessary “great debate” over interpretative theories that are not materially different from each other and instead focus directly on the value judgments themselves. It is those value values, not text or history, that drive constitutional law.