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A Response to Eric Segall on New Originalism
Michael Ramsey

Last week I noted Eric Segall's post at Dorf on Law in which he criticized "New Originalism" as no different from living constitutionalism.  Commenting on a new article by Larry Solum, Professor Segall concluded: "The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism."  This is because, he says, "originalism, in [Solum's] hands, allows judges to update the application of the Constitution’s broad phrases over time as facts and values change."

Though I'll leave it to Professor Solum to respond specifically on his views, here I want to explain why I think Professor Segall is confusing two types of "updating" and thus reaching a stronger conclusion than is justified.  In sum, he's confusing mistakes in rule selection and mistakes in rule application.  Here's a core part of Segall's discussion, referencing the 1873 case Bradwell v. Illinois, in which the Court held that the Fourteenth Amendment did not entitle women to be members of the bar:

We know that the people living in 1873 thought the original public meaning of the Fourteenth Amendment was that women could be barred from practicing law. Solum says we are not bound by that meaning today because the people living then were wrong about the facts [regarding women's intellectual equality with men]. If he is right, then we are not bound by what the people in 1873 thought about gays and lesbians, abortion, the administrative state (such as it existed then), and the relative dangerousness of guns compared to concerns about public safety. In other words, Solum’s brand of originalism ... leads to a state of affairs where the meaning of the text is not fixed at ratification (as applied to hard facts), and we are obviously not bound by what the people at the time thought about how that meaning applied to practical legal problems. In other words, originalism and non-originalism end up in exactly the same place in the context of real life litigated cases.

Solum argues ... that the Court’s lax rules on summary judgment whereby judges dismiss civil cases before they get to the jury might be inconsistent with the original public meaning of the Seventh Amendment, which provides that in “Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” But the people who ratified this provision lived in a much less litigious world than we have today. They may well have been under the factual misunderstanding that our judicial system can tolerate the time it would take to try all civil cases without the current rules for summary judgment. Or not. The point is that if we allow judges to revisit the factual assumptions upon which the constitutional text was based, then we are in effect changing the meaning of that text, something judges do on a daily basis. If this is originalism, then everything is originalism.

But I think the Bradwell example and the Seventh Amendment example are different. 

In the first example, we are supposing for purposes of discussion that the framers of the Fourteenth Amendment adopted a rule something like "Woman shall be treated equally with men except where there are relevant differences between them," and that in applying that rule they thought women were intellectually less capable with respect to practicing law (thus the result in Bradwell).  New Originalism says: We are bound by the rule that "woman shall be treated equally with men except where there are relevant differences between them" but we are not bound by the (erroneous) factual conclusion that  women are intellectually less capable with respect to practicing law.  Thus we can now say Bradwell was wrongly decided and still be (new) originalists.  This is an example of a framers' mistake in application of a rule.

In the second example, we are supposing for purposes of discussion that the framers of the Seventh Amendment adopted a rule something like "judges shall not take factual determinations away from the jury on summary judgment" and that the framers of the Seventh Amendment made a mistake (we now believe) in thinking that this would be a sensible way to run a civil justice system in a complex society.  But (without meaning to speak for Professor Solum) I think the New Originalist conclusion is (or should be) that, notwithstanding that mistake, we are still bound by the rule that "judges shall not take factual determinations away from the jury on summary judgment."  The framers' mistake here is not a mistake of application; it is a mistake of rule selection.  And we are bound by the rules they selected, even where we think they were mistaken.

Now Professor Segall is right that this still leaves a lot of ground in which New Originalists can "update" constitutional outcomes (and that is one place where more traditional, Scalia-style originalists will disagree with them).  But it does not mean that New Orignialism collapses into living constitutionalism.  The mistake-in-rule-selection category is one place it does not.

Here's a similar example, taken from a post by Ilya Somin.  Professor Somin acknowledges (at least for purposes of discussion) that the original public meaning of the executive power clause created a unitary executive for matters involving prosecutions.  But, he says, that is a bad rule for modern conditions because the executive has become so much more powerful than the framers imagined (in large part, he says, because of departures from the original design elsewhere).  Thus, he says, we should reject the unitary executive today.

Again, I think this is an example of a mistake in rule selection.  The framers erred (we will assume) in thinking that the unitary executive would be the right design for the future.  But nonetheless, that's the rule they chose.  New originalism's mistake-in-application approach does not allow updating here, because it's not a mistake in application. (To be clear, Professor Somin doesn't make a New Originalist argument, so I'm not quarreling with his reasoning, just saying that a New Originalist should not accept his conclusion).  So again, this is an example where living constitutionalism and New Originalism diverge.