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10/29/2018

What is Original About Original Meaning?
Eric Segall

[Editor's note:  For this guest post we again welcome Eric Segall, the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law.]

Over the last three weeks, I have given talks at six law schools discussing my recent book Originalism as Faith. In my book, I go all the way back to before the Constitution was ratified to discuss the topic, but in these talks, I began with Judge Robert Bork, Attorney General Ed Meese, and Raoul Berger and explain how they thought the Warren and early Burger Court’s liberal decisions were illegitimate. They complained that the only proper inquiry (leaving aside precedent) for a judge in a constitutional case is to try to ascertain whether the law challenged by the plaintiff violates the original intent of the Constitution applying a heavy burden of proof on the plaintiff. The Original Originalists, as I call them, expected judges to defer substantially to the decisions of other political officials.

But times, politics and judges change. By 1992, the lower courts had been flooded with conservative judges selected by Ronald Reagan and George H.W. Bush, and Justices Anthony Kennedy and Clarence Thomas joined with Rehnquist, O’Connor, and Scalia to form a five-person majority that reached, if not consistently conservative results at least decisions substantially more conservative than those of the Warren and early Burger Courts. In the areas of federalism and criminal procedure, especially, the Rehnquist Court moved the law far to the right. This new conservative Court, and the new conservative lower federal courts, was followed by a different brand of originalism that had little in common with the Original Originalists.

Many, certainly not all, academic originalists searched for a theory to justify the new aggressively conservative judicial review. The so-called New Originalists made several important changes to the doctrine. They decided that the search was for the original public meaning of the text not the original intent of the ratifiers; they distinguished between constitutional interpretation (the search for the non-legal communicative context of the text) and constitutional construction (giving the text legal effect); they dropped the deference aspects of originalism; and most importantly for this post, they decided that originalists were bound by original “fixed principles” but not “original expected applications.” That last move took the “original” out of “originalism” and is the move that has most befuddled the audiences for my book talks.

Here is Mike Ramsey’s explanation for why it is possible that the 14th Amendment’s original meaning prohibits same-sex orientation discrimination:

To begin, I assume that the Fourteenth Amendment’s equal protection clause establishes   an anti-discrimination or equal treatment rule …. the focus, then, is on the original public meaning of “equal” in the equal protection clause.  I will further assume the word had an original public meaning of (at minimum) non-discrimination on the basis of characteristics such as race (but not only race, or the clause would have proscribed only race discrimination).  Thus the question is whether sexual orientation is a characteristic like race.  Clearly people at the time the clause was adopted didn’t think so, because apparently no one thought the clause protected same-sex sexual conduct.  Though this is sometimes called an “original expected application” it is (especially in this context) highly probative of original meaning: the best explanation of the expected application is that whatever “equal protection” meant to people in 1868, it did not mean constitutional protection of same-sex relationships.

That, though, may not be the end of the argument.  It is possible that understandings of the facts underlying sexual orientation might change in a way that would affect sexual orientation’s status under the fixed meaning of “equal.”  While original public meaning methodology must apply the fixed meaning of the constitutional term, changes in knowledge might change the application of that fixed meaning to particular facts. (emphasis added).

Similarly, Professor Ilya Somin, conceding that gender discrimination laws (like statutes prohibiting women from being lawyers) were deemed constitutional by most people when the 14th Amendment was ratified, thinks they could be struck down by originalist judges today because of factual mistakes made by the people at the time. Today, an originalist can vote to strike down such laws because “as nearly all originalists recognize, that methodology is entirely consistent with updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.”

And Ilan Wurman’s recent book on Originalism says the following: “Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.”

Constitutional litigation does not implicate clear language such as the President must be 35 or there must be two Senators from every state. Therefore, what originalists call constitutional interpretation is mostly if not entirely irrelevant to how judges decide cases. Most litigation involves phrases like “equal protection,” “due process,” “free exercise,” and “establishment.” Calling the broad principles raised by these provisions “fixed” but then saying their application can change based on new facts, values, and knowledge is exactly how alleged “living constitutionalists” or folks who believe in pluralistic methods of constitutional interpretation would approach constitutional litigation. It is a shameful myth propounded by some originalists that non-originalists manufacture new constitutional principles outside the Constitution’s text. No one I know does that. Instead, non-originalists simply believe that “original meaning often requires that the application of the text evolves as modern circumstances evolve,” just like Wurman says.

Chapter 7 of my book documents the votes by Justices Scalia and Thomas employing exactly the methodology Wurman, Somin, and Ramsey claim is originalist but in effect is simply the same methodology employed by non-originalist judges and scholars. Cases like Printz v. United States, Seminole Tribe v. Florida, Shelby County v. Holder, Lujan v. Defenders of Wildlife and many other cases striking down laws were decided on the basis of non-textual principles derived from imprecise constitutional language and contested history using a method no different than that employed by the Court in Roe v. Wade, Reynolds v. Sims, and Obergefell v. Hodges.

The reality is that allowing judges to update vague and imprecise constitutional principles with new facts and knowledge takes the “original” out of “originalism.” Thus, today’s originalists who have moved far away from Bork and Berger (and not all have) should stop pretending that their method is legitimate while the method employed by “living constitutionalists” is not. That is simply false because both methods are the same.

Finally, my preferred method of constitutional interpretation, as outlined in my 2012 book Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, is similar to Bork’s and Berger’s. Judges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text (almost never happens) or uncontested history behind the text.

As I’ve said many times, that method of constitutional interpretation is substantially different than the one employed by any modern Justice and most academic originalists (Mike Paulsen and Steve Smith are exceptions). My deferential approach as a matter of reason and logic is substantially different than the one employed by so-called living constitutionalists and New Originalists. The idea that allowing judges to update the application of “fixed” but hopelessly vague principles prioritizes text and history in constitutional litigation is not based on reason or logic but rather a deeply held faith that the New Originalist method is better or more legitimate than the “living constitutionalists” method. Leonard Leo made that clear at the National Federalist Society annual dinner last year. That faith is misplaced, wrong, and insulting to many lawyers, law professors and judges who believe exactly what Wurman, Somin, and Ramsey (as well as the so-called Originalist Justices) believe about the relevance (or lack thereof) of original expected applications to constitutional law.