The End of the Originalism Debate Part II
A quarter-of-a-century ago, I wrote an article in Constitutional Commentary about a two-part 1900 law review article written by Arthur Machen which said just about everything that needs to be said about originalism. I concluded that we should stop arguing about the differences between originalism and living constitutionalism. I ended that article as follows:
Judges do not have to choose between a Living Constitution and the dead hand, but they must inevitably make difficult judgments about competing institutional roles and fundamental rights and liberties. Those are the truly hard questions of constitutional law, and it is time that we face them without the baggage of an old and unhelpful debate about the relationship between original meaning and constitutional interpretation.
A lot has happened between then and now and, obviously, given that I wrote a book about Originalism in 2018, there was a lot more to say about this controversial topic (in my defense most of my work has been in service of my claims in that article). What has happened since 1998 in the scholarly and judicial debates over originalism suggests that I was right the first time when I called for an end to this tired discussion.
In the first part of the article, Machen addressed this important issue: "The present paper deals with the problems which arise when a constitution, the letter of which remains unchanged, is to be applied by the courts to an altered state of facts." For example, he wrote that "commerce, instead of being conducted by stagecoaches and sail-boats, is carried on by railways, telegraphs, and ocean liners. Ideas of morality have changed: lotteries and dueling, once regarded as praiseworthy, are now thought pernicious and immoral. The effect of all these changes upon our system of constitutional law is surely an interesting and important matter for legal inquiry."
He strongly defended originalism (without calling it that) but at the very end of the first part of the article he gave us this priceless nugget:
The matter is of less practical than theoretical importance, because, whatever may be a judge's opinion upon the abstract question, his decision will almost inevitably be unconsciously influenced by his knowledge of the immediate ill effects which a theoretically correct judgment might produce. The reason, therefore, for insisting on what seems to the writer to be the true view is rather to round out a theory than to attain a practical result.
This bit of legal realism was well ahead of its time. Nevertheless, what was Machen's view of the role of original meaning or intentions in constitutional interpretation? He urged lawyers and judges to recognize that the original meaning of the Constitution never changes. That observation is consistent with what current adherents of the doctrine believe. The original meaning of the Constitution is fixed at the time of ratification and that meaning does not change. However, Machen went on to say this in the second part of his article:
It does not follow that an act which was unconstitutional one hundred years ago must necessarily be so held to-day.... For while denying in the most unqualified terms the notion that the Constitution is capable of a varying construction, we may often be swayed by the same arguments advanced in favor of that heresy, and even reach the same results, but in a perfectly legitimate way, simply by a careful discrimination between matters of law and fact. The law of the Constitution remains forever unchanging: the facts to which it must be applied are infinitely various.
Machen gave an example of what he meant. He suggested that a law passed at the behest of margarine sellers in the year 1900 forbidding the sale of butter would likely be interpreted by the courts as an arbitrary denial of due process of law. But if the facts about the two products changed, and people began preferring margarine to butter, and now people were concerned that sellers of butter were trying to pass off that product as margarine, then on "those facts the legislature might constitutionally prohibit the manufacture and sale of butter just as acts absolutely forbidding the sale or manufacture of oleomargarine are now upheld. In that circumstance, the interpretation of the Constitution has not changed-the same definition of 'due process' would be given. It is the facts which would have changed."
Machen argued that judges are not bound by questionable facts from long ago and that results in constitutional cases properly can be different from one era to the next, even as the meaning of the text remains constant. Most modern originalists, as I show below, agree with this method of constitutional interpretation.
Professor Larry Solum is a leading academic originalist of the last 25 years. He has said that virtually all originalists believe that the original meaning is fixed at ratification and, if discoverable, is constraining on judges. But he also believes that "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." That position is identical to the view of Machen, who wrote his article more than 100 years earlier.
Applying the view that judges are not bound by "false factual beliefs," Solum justifies applying heightened scrutiny to gender discrimination despite the fact that in 1868 neither the original public meaning of the 14th Amendment nor the original intentions of those who wrote and ratified it would suggest discrimination against women was constitutionally suspect (women would not even obtain the right to vote for another 50 years). Solum wrote that:
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.
Similarly, Professor Ilya Somin has said that "nearly all originalists recognize" that changing facts can lead to the "updating" of the Constitution's applications "in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution."
Solum and Somin, along with virtually all originalists today, believe that a law completely constitutional in one era can be deemed by judges unconstitutional in a later era if the relevant facts have changed enough. Now, let's go back to the year 1900 and Arthur Machen:
For while denying in the most unqualified terms the notion that the Constitution is capable of a varying construction, we may often be swayed by the same arguments advanced in favor of that heresy, and even reach the same results, but in a perfectly legitimate way, simply by a careful discrimination between matters of law and fact. The law of the Constitution remains forever unchanging: the facts to which it must be applied are infinitely various.
It is virtually impossible to find a case today where a judge or academic could not point to materially changed facts to justify a departure from original meaning as applied to concrete issues. For example, if an originalist judge wanted to find abortion to be a constitutional right, the same reasoning that Solum applied to Bradwell could be used to argue that today women are supposed to play an equal role in society as men, we are constantly striving towards that goal, and the only way to get there is to protect female bodily autonomy. These are all changed facts justifying a departure from original meaning as applied to abortion.
Similarly, as the Brown v. Board of Education Court said, public school education in 1954 (and of course today) bears almost no resemblance to the world of education in 1868. Even if the original meaning of any constitutional provision barred or didn't bar a modern statute dealing with public school education, a judge wanting to depart from that application could easily find changed facts to justify the departure. The issues involving trans athletes might be an example of judges needing to recognize changed facts, or in Solum's words, even changed "beliefs about facts."
And, it should be obvious that nine truly sincere originalist justices could easily depart from what they take to be the implications of the Second Amendment's original meaning by pointing to the changed facts that weapons today bear little or no resemblance to those of 1791 or 1868, and cities today are much more crowded than back then, so even if a gun law would have been deemed unconstitutional in prior eras, the exact same law should be upheld today because of changed circumstances.
If you are starting to see the great similarities between this form of originalism and living constitutionalism, you'd be right, and that’s the point. Judges, both originalist and non-originalist, will always say original meaning is relevant if discoverable. But if a judge decides that the application of that discoverable meaning should be different than in previous eras, the originalist judge is definitely not stuck. Our country is so different than it was in 1791 or 1868 that there will always be relevant facts to choose from to depart from that meaning. The living constitutionalist of course can reach the same or different results without utilizing originalist vocabulary by applying a traditional pluralistic analysis.
Even Justice Clarence Thomas in the landmark Bruen gun decision wrote that although the meaning of the Second Amendment "is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated." That sentence sounds a lot like Arthur Machen. Thomas goes on to say that when reviewing firearm regulations, the "historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are 'relevantly similar.'”
I will have more to say about Machen and the Bruen opinion in a forthcoming article but for now it is enough to recognize that the only plausible way to conduct the type of analogical reasoning the case requires is to see which changed facts are relevant and which are not, and that is essentially what Machen said about constitutional interpretation over a century ago.
One objection to this post might be that originalist judges will generally pay more attention to history than non-originalist judges. That is likely correct but as Machen explicitly recognized, the use of history by judges in constitutional interpretation will be secondary to more pragmatic concerns. The originalism/living constitutionalism debate just won't matter at the point of decision if judges do not like the result history suggests. He was right about this in 1900, and it is even more true today.
Machen's article is the first one anyone has yet to find to use the phrase the living Constitution, and he rejected the idea formally but also said that judges can reach just about any result they want by pointing to changed facts. He also recognized that a judge's devotion to historical accuracy will be secondary to the judge's understanding of the consequences on the ground of a holding steeped in history. Therefore, academic debates over the use of history in constitutional law may be interesting but are not a true guide to how judges actually decide cases.
Machen said all that a long time ago. And there is not much more to say on the subject, though I am not naive and do recognize that these never-ending debates are unlikely to stop just because they have little relevance to how judges decide real cases