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Eric Segall Has Some Questions for Originalists
Michael Ramsey

At Dorf on Law, Eric Segall: Originalism on the Ground (posing ten questions for those who "consider themselves to be originalists in a meaningful way").  Here are some thoughts on possible answers.

The first six questions, though also worth considering individually, can be grouped generally as claiming that substantial areas of Supreme Court doctrine (from free speech to commandeering and the Eleventh Amendment) can't be justified -- and have not been justified -- under originalism, which plays little if any role in their development.  Professor Segall asks, in various ways, whether this undermines or marginalizes the originalist project.

I accept his premise that plenty of Supreme Court cases and doctrine don't find much support in originalism. (Others may have a different view, and I think he may overstate his claim, but the basic proposition seems correct).  I don't see why this is a problem for originalism.  The originalist project, at least for many people, isn't descriptive; it seeks to change the way the Court and the legal culture think about judicial decisionmaking.  It's true that in areas with extensive non-originalist doctrine it may be difficult to decide how best to advance the originalist project.  But that's a tactical question, not a fundamental challenge.  If a particular area of doctrine hasn't been justified on originalist grounds -- say affirmative action, one of Professor Segall's examples -- then (originalists would say) it should be so justified or it should be abandoned (or at least not extended).  It seems to me that this would be true of any approach to adjudication that tries to get courts to do something other than what they are now doing.  For example, if you think courts should decide cases principally in ways that favored less powerful groups, you would find plenty of cases and doctrine that don't apply that view; you'd just say they should come out differently.

Questions 7 and 9-10 go to the issue of how much constitutional evolution one can accept and still be an originalist (specifically, he asks, is Jack Balkin an originalist?).  Here my answer starts with the definition Larry Solum has pressed in various places (see here), and which Professor Segall quotes in a different question: 

I believe that the best understanding of "originalism" is that it is a family of constitutional theories that is unified by agreement on two ideas.  The first of these ideas is the Fixation Thesis:  the communicative content (or linguistic meaning) of the constitutional text is fixed at the time each provision is framed and ratified.  The second idea is the Constraint Principle: constitutional actors should be constrained by the fixed communicative content of the text.

One can accept these two ideas and still have wide disagreements, in particular on (a) how much fixed content there is, and (b) what should be done when the fixed content doesn't resolve the issue posed in a particular case or field? I think Professor Balkin accepts Solum's two principles, but (a) he has a thin view of what is fixed and (b) he has a broad view of judges' authority to develop principles in areas where matters are not fixed.  On that assessment, he is an originalist. But he is likely to differ in results from many originalists who disagree with him about (a) or (b), or both.  That's what makes him innovative (and controversial).

Question 8 goes to my main area of interest: how originalism  works as a practical matter. Segall asks:

I do not understand how either the Fixation Thesis or the Constraint Principle applies to constitutional provisions with hopelessly vague language and contested histories. I am thinking about bans on “unreasonable searches and seizures,” the “establishment of religion,” the denial of the “equal protection of the laws,” and “cruel and unusual punishments,” among many others. I would like to know how you would expect judges to, for example, be guided by either of these Principles when deciding whether lethal injections that cause X amount of pain we know about and possibly Y amount of pain we don’t know about, constitute “cruel and unusual punishment” or whether the Constitution extends habeas protections to places like Guantanamo Bay where the United States does not exercise formal sovereignty but does exercise complete control ...?

I have three responses.  First, if the provisions have "hopelessly vague language and [hopelessly] contested histories" then originalism cannot give them meaning.  What that means for adjudication is contested among originalists, with the principal candidates being (a) judges can construct meaning and (b) judges lack authority to intervene against the political branches in the absence of a constitutional violation.  (I like the second one).

Second, sometimes constitutional language and history is not hopelessly vague and contested (or at least it is not hopelessly vague and contested as to some controversies and applications).  In such cases, originalists say, we should apply the original meaning.  The fact that original meaning doesn't supply an answer in all cases is not a reason to ignore it when it does supply an answer.

Third, and most importantly, a key disagreement is: how often are constitutional provisions hopelessly vague and contested?  Professor Segall's implication is that this happens very frequently, maybe most of the time.  Perhaps.  But I think the difficulties of reaching originalist answers are often overstated.  Among other things, (1) originalist analysis only seeks to find the more likely original meaning among various possibilities, not a meaning that is undoubtedly correct or entirely free from dispute; (2) many constitutional clauses have seemed obscure only because their history had not been closely studied, and as originalist scholarship proliferates we gain better tools for assessing them; and (3) originalism may contain interpretive principles and default rules that help resolve close cases (what John McGinnis and Mike Rappaport call "original methods").  My own scholarship has been principally devoted to finding original meaning in areas of supposedly great doubt, such as foreign affairs; in general I've found that originalist answers can be found to many practical questions, although others remain elusive or indeterminate.