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More Originalism Skepticism from Eric Segall
Michael Ramsey

In response to my comments here, Eric Segall writes: 

As usual Mike Ramsey raises interesting points about my criticisms of Justice Scalia. Mike's first point is that Scalia might have felt it impossible to consistently apply originalism in areas like the first amendment where there exists so much Supreme Court case law. That's fair but then Scalia should have admitted that instead of going around the country saying the Constitution is "Dead, Dead, Dead." As David Strauss has pointed out, most of constitutional law is made up of Supreme Court decisions. If that makes Originalism very difficult, Scalia should have said so more directly.

Mike's second point is that I overstate the degree to which Scalia failed to use originalist analysis. This is largely an empirical question and I'll address it at length in my forthcoming book.

Mike's third point is that even if Scalia did not apply Originalism faithfully, that says little about the doctrine itself. Originalists don't claim the doctrine is perfect  just that it is more constraining than other doctrines. But today there are as many different forms of Originalism as there are alternatives, and leading Originalists have said that Originalism justifies Obergefell, Roe, and Brown while others deny that vehemently. The entire doctrine of constitutional construction allows judges to import their normative values into constitutional litigation, something Justice Scalia did throughout his career, in the cases I cited in my original piece.

RELATED:  Professor Segall has this additional post at Dorf on Law: Text and History Fed Soc Style (commenting on last week's Federalist Society National Lawyers Convention in Washington). 

Professors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: "Originalism and Textualism.'"

There are a number of ironies in this Federalist Society call for textualist-originalist judging. First, Barnett using Lochner to support his textualism/originalism thesis is interesting given that there is barely a word about text or history in the entire majority opinion. Moreover, as my forthcoming book "Originalism as Faith" will argue, the founding fathers either believed in the "clear error" version of judicial review, or maybe just a strongly deferential system. There is no plausible argument they believed in an aggressive, Lochner-style form of judicial review. And of course, judicial review is nowhere mentioned in the Constitution. If Barnett and Fed Soc want to defend Lochner's version of judicial review, it will have to be through a living constitutionalism type argument not a textualist-originalist one.

Second, focusing on text gets judges almost nowhere when resolving constitutional cases, just like it was irrelevant to the majority in Lochner. Most constitutional litigation arises under clauses that are hopelessly vague and general such as the First Amendment's speech and religion clauses, the Fourth, Fifth and Sixth Amendment's criminal procedure rules, which are mostly unclear, and the Fourteenth Amendment's equal protection and due process clauses. All judges are textualists in the sense that if the text is clear, the judge will follow it, but that rarely if ever happens in constitutional law.

Maybe what the Federalist Society is devoted to is the idea that judges shouldn't make up rights and principles that aren't enumerated in the Constitution. But that can't be right for two reasons. First, there is considerable support these days among Federalist Society members for the idea that the Privileges or Immunities Clause (and maybe the Ninth Amendment) protect unenumerated rights. Barnett has worked hard to make both of those ideas mainstream among Federalist Society followers. The main focus of the Society seems to have switched from anti-Roe, anti-judicial activism to the thesis that the Justices aren't doing enough to protect the right kind of (i.e., economic) rights, enumerated or not.

Second, although I have no proof, my strong guess is that most of the people clapping wildly for textualist judges at the convention agree with the equal state sovereignty principle the Court espoused in Shelby County, the anti-commandeering principle of Printz v. United States, the color-blind principle advocated so long by the conservatives on the Court in numerous affirmative action cases, and the sovereign immunity principle applicable to suits against states by their own citizens that the Court concocted in Hans and reaffirmed in Seminole Tribe. None of those important constitutional limitations on governmental discretion can be found anywhere in the Constitution's text.

(Thanks to Mark Pulliam for the pointer).