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11/10/2015

More from Eric Segall on Practical Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Originalism on the Ground Part II (responding to my post, which in turn responded to his initial post on "Originalism on the Ground").

Professor Segall makes multiple good and challenging points but this seems to be the heart of it:

Second, to the extent that Mike [Ramsey] thinks that original meaning can provide helpful answers to modern questions, he needs to address the difficult issue of applying fixed original meaning to new facts. As Justice Scalia said in Minnesota v. Dickerson, the Founders might not have accepted the “indignity” of being frisked by the police pursuant to arrest (as allowed by Terry v. Ohio), but because guns have become much smaller and more powerful since then, what is a “reasonable” search may have changed. Similarly, in Citizens United, Justice Scalia said that even if the Founders would have believed for-profit-corporations had no free speech rights beyond those affirmatively granted by the state, the nature of corporations has changed so dramatically that a different result may be required today.
 
But, if what is “reasonable” changes or how we view corporations changes as society does, why not “liberty,” “marriage,” and “sovereignty,” etc? But once that move is allowed, then we have to inquire how original meaning, assuming it is ascertainable, applies to changed facts and new circumstances. And, once judges or scholars cross that great divide, originalism falls into itself, and originalism and the living Constitution become indistinguishable.
 
I will try to put together some useful further thoughts in due course.  For now I'll start by saying that I definitely do not think that, if the original meaning of the Constitution shows that people who organize as corporations thereby lose their constitutional rights, originalism can allow a change in the "nature of corporations" to produce a different result today.  I agree with Professor Segall that if you accept a different result today, you are applying an evolving Constitution.  (The "reasonable search" example may be different because that language might -- in its original meaning -- invite an evolving application).