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09/01/2017

Eric Segall on Determinacy and Originalism [Updated]
Michael Ramsey

At Dorf on Law, Eric Segall: Lost in the Construction Zone (commenting on the recent exchange between Michael Dorf and Larry Solum).   A central point:

Larry [Solum]'s response to Mike [Dorf] that is relevant to this essay centers around how much of constitutional law is "underdetermined" by the semantic meaning of the text or historical analysis of that text. Solum claims that Mike (and other critics of originalism) overstate the degree of indeterminacy. Larry says that there are only “a very few open-textured constitutional provisions” and “that the indeterminacy of the original public meaning of the constitutional text has been greatly exaggerated.”
 
This claim raises an empirical question, but one does not have to be a legal realist to suggest that, when talking about the universe of Supreme Court constitutional cases, or even appellate level constitutional cases, the amount of indeterminacy is quite large. Phrases like “freedom of speech”, “equal protection”, “due process”, “unreasonable search and seizure”, and “establishment of religion,” simply do not have clear semantic meanings, especially when they arise in modern controversies. One of the major gaps in Larry’s theories, and those of other New Originalists as well, is that they have failed to demonstrate that semantic meaning is relevant to a significant number of litigated constitutional law cases. In fact, they haven’t even tried.
 
I think this is an important criticism for originalists to consider.  I suspect, however, that there is disagreement on the meaning of "indeterminacy."  How much "determinacy" is required?  Must originalism/semantic meaning provide only one conceivable answer?  Or is it enough that one originalist answer to the question is substantially more likely than the alternatives?
 
I suspect Professor Segall takes the former view.  (He refers elsewhere in the post to provisions such as that the President must be 35 years old or that each state should have two Senators as examples of "clear constitutional meaning").  But I think essentially no originalists (at least, no academic originalists) take that view of determinacy.  Rather, they would say originalism provides a determinate answer when, after assessing all the relevant originalist evidence, one outcome is more likely than others to represent the original meaning.  (How much "more likely" it must be is debated among originalists; some would say 50% +1 is enough, while others would require a higher threshold).  In any event, when Professor Solum and others say that orignalism is determinate in many cases, I think they mean determinate under some form of a "more likely than not" standard, not determinate under a "no possible argument to the contrary" standard.
 
As an example, consider the recess appointments case, Noel Canning v. NLRB.  A central issue was whether the constitutional phrase "Vacancies that may happen during the Recess of the Senate" means (narrowly) vacancies that arise during a recess or (broadly) vacancies that continue during a recess regardless of when they arise.  I would not contend that this issue is "determinate" in the sense that there is only one conceivable originalist answer.  However, I think that upon consideration of all the relevant originalist evidence, it's fairly clear that the original meaning was the narrow one.  I and a number of prominent originalists made this argument to the Court in the Noel Canning case (in an amicus brief of originalist scholars), and all four of the originalist and originalist-leaning Justices reached the same conclusion.  For me, the original meaning of the recess appointments clause is determinate.  (I am heavily influenced here by the work of my colleague and co-blogger Mike Rappaport).  But I doubt Professor Segall would agree.  I think that disagreement arises not so much from a difference of opinion about the recess appointments clause, but a difference of opinion about what it means to be determinate.
 
UPDATE:  Eric Segall responds:
 
I think Berger's and Bork's Originalism was determinate enough because they also suggested substantial deference. If all original meaning has to be is 50.1% against the law for judges to strike it down, then almost by definition history won't play a primary role because in no case will a judge be meaningfully constrained by that standard. In any event, and more importantly, the main point of my piece was directed at Larry Solum and other New Originalists who simply have not told us very much about their view on cases on the ground. To the extent we have information such as Randy Barnett thinking Jack Balkin's view on Roe v. Wade is likely right, and Ilya Somin and Steve Calabresi think same sex marriage bans are unconstitutional under the original meaning of the 14th Amendment, it is reasonably obvious original meaning is not particularly determinate for them.