« An Interpretive Conundrum in Jam v . IFC
Michael Ramsey
| Main | Does Illegal Immigration Necessarily Consist of “Aliens in Amity” With the U.S.?
Andrew Hyman »

10/31/2018

Responses to Andrew Hyman and Michael Ramsey
Eric Segall

Thanks to Andrew Hyman for engaging with my post. We agree on most matters but do have one bone of contention. He writes that "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."

The major point of my post was that today's originalists who claim not to be bound by original expected applications are no better (or worse) than so-called non-originalists "at giving the constitutional text a new meaning that it never previously had, essentially rewriting the text." Both sides claim that they are giving the text itself an updating meaning not rewriting it. The reality, however, is that very few judges or scholars today are primarily motivated by text or history in hard constitutional cases and have little compunction in updating old principles to new facts. The difference is many originalists are claiming to be applying the original public meaning as a major factor in constitutional interpretation (when they are really just updating old principles) while non-originalists admit up front that updating the text is fully permissible with original meaning being just one factor among many to be considered.

As for Professor Ramsey's question from yesterday , here's my answer:

I’m not an expert on the issue of birthright citizenship but it appears there is strong consensus among scholars that both the text and history of the 14th Amendment are clear on this question. In my fantasy world of super clear error judicial review, this might be a close case but as I said I haven't researched it. Of course, we don’t come close to living in that world so the reality is that all bets are off and we can only predict what the Court will do as a political, not legal, matter. (See Janus).