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Lawrence Solum: Surprising Originalism (with Comments by Eric Segall)
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Surprising Originalism on SSRN.  Here is the abstract:

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks to legitimize conservative outcomes by invoking the prestige of the Founding Fathers. But in fact, the original public meaning of the constitutional text is a mixed bag--leading to many results that would be welcome by conservatives, but others that might be appealing to liberals or progressives. Even sophisticated lawyers and judges may believe that the justifications for originalism can only appeal to conservatives, but, in fact, the case for originalism, rooted in the rule of law and the value of legitimacy, can appeal to Americans with a wide range of political beliefs.

This Article discusses three ways in which originalism is surprising: Surprising theory is the topic of Part I. Surprising implications are explored in Part II. Surprising justifications are the subject of Part III. The Conclusion reflects on the implications of surprising originalism.

At Dorf on Law, Eric Segall has this response: Just the Facts Originalism: No Surprise Here.  It begins:

Professor Larry Solum just posted an article on SSRN titled “Surprising Originalism.” ...

In this piece, which was the basis of a lecture at the University of Akron, Solum repeats much of what he has said before about originalism and claims that much of the essay might surprise those not closely following recent scholarly debates over originalism. The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism.

And in conclusion:

... In other words, Solum’s brand of originalism, contrary to his two major assumptions, 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 originalism done correctly is neither liberal nor conservative and that “there is something for everyone, but everything for no one.” As an example, he 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.

I don’t know any legal scholar (except perhaps Judge Posner) who believes that judges may ignore clear constitutional text or the universally understood historical context surrounding that text. No one thinks judges can simply disregard the Constitution's broad principles. Yet, most legal scholars, including Solum, believe that even though judges are bound by the vague principles set forth in the Constitution, the application of those principles to new factual contexts requires judgments based on judicial evaluations of today’s world, not the facts of 1787 or 1868. To repeat, I understand that Solum and other like-minded originalists want to say that meaning is "fixed" even as applications change over time. I am confident they sincerely believe this distinction is important. But is is not important because virtually all of the conflict that arises from constitutional litigation involves application not meaning. That is why I say that for all practical purposes, meaning does change over time, and one of Solum's premises about originalism is inconsistent with how he actually suggests judges decide real cases.