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08/22/2017

David Strauss Guess What: You are an Originalist After All
Eric Segall

[Editor's note:  For this guest book review, we welcome Professor Eric Segall, the Kathy and Lawrence Ashe Professor of Law at the Georgia State University College of Law, and a prominent critic of originalism.]

The most recent entry in the “originalism is our law” sweepstakes is Ilan Wurman’s “A Debt Against the Living: An Introduction to Originalism.”  [Ed.:  see also here for a podcast discussion of the book.]  This 135-page book is an excellent “introduction” to many difficult questions pertaining to constitutional interpretation.  However, as is the case with so much scholarship these days, its conclusions are “originalist” only if originalism and pluralistic theories of constitutional interpretation, including what the author refers to as “living constitutionalism,” are one and the same.

The book tackles two important questions: how should we read the Constitution, and is the Constitution worth keeping today. The author has a wonderful Hemmingwayish turn of phrase which makes the style of the book accessible to any reader interested in constitutional interpretation. Law students would benefit from reading the book (provided they are well-supervised, see below).

Wurman argues that we first need to understand what the Constitution says before we can decide whether to keep it. I’m willing to go with that chronology as a logical matter, but this review tackles the second question first.

Wurman describes three major theories of constitutional legitimacy: the “libertarian school,” the “progressive-originalist school,” and the conservative school.” (p.47). Libertarians argue that the Constitution “must protect natural rights.” Progressive-Originalists believe that the Constitution “must allow for responsiveness to contemporary politics.” Conservatives believe that legitimacy “is rooted in an act of popular sovereignty when the people ratified the Constitution in 1789.” (pp. 48-49). These theories correspond to the work of Randy Barnett, Jack Balkin, and Keith Whittington, Mike Rappaport and John McGinnis, respectively.

The descriptions are as accurate as 18 pages will allow. Wurman treats each scholar fairly and concludes that the Constitution is legitimate because each theory has something important going for it. He concludes that if “the Constitution protects natural rights, creates a republican form of government, and is rooted in an act of popular sovereignty, then prudence demands that we obey it today, whatever its imperfections.” (p.81).

Fair enough, though I wish Wurman had spent more time than he does on the exclusion of women and minorities from the ratification processes. His essential response is a shrug of the metaphorical shoulder. Well, no one is perfect and we must accept the founders’ world that they were living in not some make-believe place: “The Founding was as legitimate as could be for its time.” (p.64). Maybe, but the question is whether the Constitution is legitimate today, not in 1787 when only white males could vote and hold most important jobs.

The other half of the book explains why we should all be originalists. Wurman again accurately describes the major justifications originalists normally employ. In a nutshell, Wurman argues that Randy Barnett and others argue that the fact that the Constitution was written down shows that the people who ratified it intended it to govern our behavior until the document was changed. Therefore, it only makes sense to interpret the document as it was originally intended (pp.26-27).  Moreover, all communication, according to Wurman and Keith Whittington, is “always interpreted by its original public meaning” because that is the very nature of the act of communicating (p.29-31). Finally, “rule of law” values such as consistency and transparency require “that we live by those public meanings.” (p.31) Put all three elements in a hopper and presto we have originalism!

This is much more controversial than Wurman allows (other countries with written constitutions don’t see originalism as inevitable) but I will let some other reviewer take that on. The more important aspect of the book is Wurman’s discussion of how judges should interpret the Constitution and the relationship between “interpretation” and “construction.”

Wurman explains that many modern originalists believe that in many (maybe most) litigated constitutional cases, the text and history will be too vague, ambiguous and/or contested to resolve today’s pressing problems. Thus, determining what the Constitution meant at ratification is “interpretation” but deciding what legal effect that interpretation yields given a certain set of facts is “construction.” (p.20). Although originalism may limit the range of plausible meanings, it will nevertheless “run out” when a judge is trying to answer a specific constitutional question. (p.20).  In that case, what is a judge to do?

Again, Wurman faithfully describes the dominant originalist replies to this problem. Randy Barnett thinks judges should construct constitutional outcomes with reference to a strong presumption of liberty; Judge Bork thought that we should presume legislation is constitutional if text and history don’t clearly show that it isn’t; and McGinnis and Rappaport (who deny the interpretation/construction distinction) argue that judges can use “original interpretative conventions” such as cannons of interpretation to resolve hard cases. (pp.84-96). Wurman makes a compelling case that, as these scholars all suggest their answers are grounded in text and history, construction really is originalist after all. (pp.86-87). Fair enough.

Although Wurman leans towards the “original interpretative methods” theory, he sees value in all three and concedes that “different contexts might require use of one or the other.” (p.94). He then asks the question we have all been waiting for: “what do we do when we’ve used all our interpretative rules and cannons and the constitutional answer still isn’t clear?” (pp. 94-95). Before we examine his answer, we must circle back to what Wurman says generally about originalism and living constitutionalism.

Throughout the book, Wurman criticizes Professor David Strauss and his theory of common law constitutional decision-making. In the first several pages of the book, Wurman argues that Strauss sides with Thomas Jefferson who famously said, “The earth belongs to the living, and not to the dead.” (pp.1-2). Strauss describes the Supreme Court’s constitutional doctrine as similar to the common law model where precedent, not text or original meaning, plays a dominant role (p.122). In turn, Wurman describes this as a “living constitutionalism” model and strongly implies that it gives too short shrift to the original meaning of the text. The problem with Strauss’ theory is that “it is unclear why judges should be permitted to make freewheeling policy choices contrary to the policy choices of our representatives ….” (p.124).

Okay, so how does Wurman suggest judges decide hard cases. His answer comes in two parts. First, he embraces the notion of “liquidation.” He concedes that the “first few times” a judge has to resolve a hard constitutional issue, he will choose “among the competing plausible options.” (p.95). This choice will “in some sense be arbitrary.” (p.95). 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.” (p.95). How this liquidation method of constitutional decision-making is different than Strauss’ common law constitutionalism, which Wurman describes as living constitutionalism, is elusive at best, and Wurman never tells us.

Wurman’s second answer to the hard cases problem (read virtually every constitutional case the Supreme Court decides) revolves around Professor Christopher Greene’s “sense-reference” distinction, and Wurman’s rejection of original expectations originalism. An originalist is not bound by what the people living in 1787 or 1868 expected the text to mean in concrete factual situations, except for those provisions where the text is clear such as the President must be 35. For the unclear provisions (the ones that lead to litigation), the Constitution “enshrine[s] a sense that does not change with time. But the facts and conditions to which the sense applies-the referents of the constitutional provisions-can change.” (p. 40.).  Wurman goes on to argue that “we are not bound by [the framers’] factual errors.” (p.114). Thus, and this is familiar territory to people well-versed in the originalism debates, the “sense” of the Fourteenth Amendment is equality, and if the people in 1868 made the factual error of thinking segregation was consistent with equality, judges in 1954 may correct that “error” consistent with originalism. (p. 113-115).  To be fair, Wurman also discusses Michael McConnell’s historical justification for Brown and Michael Klarman’s response (pp. 110-1130), but at 5 pages he doesn’t do justice to that debate.

In hard cases, judges should look to prior judicial doctrine and decisions made by other constitutional actors to see if the meaning of the text in issue has been liquidated. If not, judges are free to determine the “sense” of constitutional provisions, which in the case of the equal protection, due process, and privileges or immunity clauses, basically means equality, fairness, and identifying fundamental or natural rights, to come up with the best constitutional solution. This is, of course, common law constitutionalism and living constitutionalism all the way down. In Wurman’s own words: “Originalists recognize that original meaning often requires that the application of the text evolve as modern circumstances evolve, more still, they often recognize that originalism doesn’t always lead to specific answers. Conversely, living constitutionalists almost universally agree that the text and its original meaning matter in constitutional interpretation-even though they think original meaning is less determinate than originalists tend to think and that it should be less dispositive.” (p.8).

The last disclaimer is a non-starter. The Court’s actual constitutional law docket cannot be answered through original meaning in any serious sense, and virtually all living originalists concede that where the Constitution is crystal clear, judges should normally apply that meaning. The originalism debate only matters to those cases likely to reach judges. In that subset of cases, we are all living common law constitutionalists as Wurman describes, which is maybe why Wurman says at the beginning that “to my liberal readers, take heart! You might find that originalism as it is now understood is quite an attractive theory (p.8).  Guess what David Strauss, you are an Originalist after all, “as originalism is now understood.”

No, not really. The truth is that Randy Barnett, Jack Balkin, Will Baude, and most “New Originalists” are actually living constitutionalists, as many of us have been arguing all along.