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A Reply on New Originalism
Eric Segall

[Editor's note: this is a guest post by Eric Segall (Georgia State) in response to this post from yesterday. As always, we welcome responsive guest posts from anyone whose work is discussed on this blog.]

I always appreciate it when Mike Ramsey comments on my originalism work. His thoughtful response to my critique of Professor Solum's "Surprising Originalism" draws a distinction between a "mistake in application" of a rule and a mistake in "rule selection." I agree there's a difference, but not one that is material to the originalism debate or my belief that New Originalism and Living Constitutionalism are indistinguishable (there are of course many originalists who don't accept the premises of New Originalism).

Mike is suggesting that New Originalists think judges should be bound by the selection of rules in the Constitution but not how the ratifiers thought those rules would be applied.  The problem with this distinction is that few constitutional rules that lead to litigation are application free. Whether we are talking about freedom of speech, equal protection, establishment of religion, or cruel and unusual punishments, most, if not all the time, judges will have to apply rules with judgment. If judges (under New Originalism) are allowed to ignore what the people in 1787 or 1868 thought about the applications of the vague rules they set forth to specific facts, then judges can update the Constitution as they see fit, i.e., like a living constitutionalist.

Moreover, the application of vague rules to questions such as the validity of state bans on SSM or bans on women in combat involve value differences not fact differences. And few scholars or judges want to apply 1868 values concerning gender, sexual orientation, and most other modern constitutional problems. Thus, living constitutionalism and New Originalism merge for virtually all litigated constitutional questions that make their way to court.