Professor Segall is Mostly Correct “IMHO”Andrew Hyman

I agree with Professor Eric Segall’s recent blog post on several points.  For example, he writes that there are different kinds of originalists (i.e. “not all have” the same approach), and says that original meaning “often requires that the application of the text evolves as modern circumstances evolve.”  I agree with all of that.  Segall is also correct that originalists and non-originalists fit on a spectrum where they meet and become virtually indistinguishable.  And, he writes that “[j]udges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text ... or uncontested history behind the text. ”  All pretty much true, but I would like to disagree on a few points.   

 

Professor Segall writes that, “It is a shameful myth propounded by some originalists that non-originalists manufacture new constitutional principles outside the Constitution’s text.”  On the contrary, some non-originalists do attach a much higher value to current societal needs than to the Constitution’s text, on the ground that the Constitution’s meaning should evolve so as to fit whatever the times now demand; some non-originalists are less freewheeling than that, but still would allow the Constitution to be amended outside of the Article V amendment process during so-called “constitutional moments.”  Whether Professor Segall subscribes to any such views or not, non-originalists have a variety of approaches to constitutional law; they are no more monolithic than originalists, and often they have no compunction about giving the constitutional text a new meaning that it never previously had, essentially rewriting the text.  There’s nothing shameful or mythical about acknowledging this.  

 

Regarding specific clauses mentioned by Professor Segall, I’ve written a bit about phrases like “equal protection of the laws,” and “due process of law,” and have found that there is no preponderance of evidence, much less clear and convincing evidence, for the extremely broad meanings that the judiciary have attributed to these clauses in the Fourteenth Amendment. But that has not stopped many non-originalists from using those clauses to embody whatever policy preferences they want.    I disagree with Professor Segal that those two clauses are “hopelessly vague,” but appreciate his reluctance to let the judiciary harness that supposed hopeless vagueness.  

 

The Due Process Clause has ancient roots going all the way back to Magna Carta, and primarily established a separation of powers, i.e. the executive could not inflict deprivations without judicial proceedings authorized by legislatures.  To the extent that the Due Process Clause limits how American legislatures authorize deprivations of liberty, the clause simply establishes a remedy for violating other constitutional trial procedures — and that remedy is liberty.  The Equal Protection Clause was more innovative in 1868, but still was not a blank check for the judiciary to impose equality; if the clause had referred to “the equal protection of its laws” instead of “the equal protection of the laws” then the clause would have only required equal administration  of whatever laws were on the books of each state; the only purpose for using the word “the” instead of “its” was to include federal law, thus allowing SCOTUS to check state legislatures pursuant to congressional declaration.  I would have no problem if those two clauses (DP and EP) would be applied faithfully against legislators in new and unexpected circumstances, if there is clear and convincing evidence that the legislators have violated these clauses.  Professor Segall is absolutely right to require clear and convincing evidence,  or “irreconcilable variance” as Hamilton put it in Federalist 78, and this requirement is deeply rooted in the original meaning of judicial power.