Eric Segall: Who Is Originalism For?
At Dorf on Law, Eric Segall: Who Is Originalism For? From the conclusion:
Judge Bork's originalism provided a rule for judges in [hard] cases. The government wins absent clear evidence of unconstitutionality as shown by text or history. But few modern originalists, including Justices Scalia and Thomas, as well Professors Randy Barnett, Jack Balkin, and Will Baude (all self-styled originalists), take that position. Moreover, as far as I can tell, Professor Larry Solum's work does not offer this kind of deference either.
Solum and Barnett might respond that I am confusing the semantic meaning of the text with the legal meaning. They have argued that what the words meant to the people at the time is a very different question than how judges should apply those words to current modern problems, which requires what they call "constitutional construction." The problem is that as I, and many other people have observed, this dichotomy between semantic and legal meaning renders originalism indistinguishable from living constitutionalism. Moreover, if, as Randy argues, originalism often "runs out" in hard cases, then the question again becomes who is originalism for?
The sad answer, I think, is that originalism is a marketing device for judges and politicians (like the President-elect, Ted Cruz, and others) to use to mask personal judgments about what is best for society today. For scholars, it is a means of discussing constitutional law in a way that appears academic and theoretical but at the end of the day doesn't describe accurately how judges decide cases or likely ever will decide cases. I will have more to say about both of those claims in future blog posts, articles, and my book Originalism as Faith. But for now, it is enough to suggest that originalism without deference is absurd, and if I'm right that Supreme Court Justices (life-tenured government officials who have enormous power) will inevitably do what they think is best, as has been the case with Justice Scalia and Thomas, then we must ask seriously who is originalism for?
An interesting and challenging post. I would say (although it is not a complete response) that there is an intermediate position between Bork-ian deference and Barnett-ian or Balkin-ian New Originalism. It is that the government should get deference when the originalist sources are inconclusive, but that "inconclusive" is applied narrowly to mean the originalist arguments are close to evenly matched, not just that there is some originalist evidence on both sides. I think this might describe Scalia (at his best), and perhaps others; so originalism might be for them.