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11/17/2018

Eric Segall: Is Originalism a Theory?
Michael Ramsey

At Dorf on Law, Eric Segall: Is Originalism a Theory? Here is a key part of the argument: 

As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.  Professor Michael Paulsen, a noted national scholar and Originalist, believes that originalism must be exercised with strong deference to the decisions of non-judicial political actors. He has said the following:

Where vague or general language admits a range of meaning, actions of representative government falling within that range cannot be said to be unconstitutional. Ambiguity does not supply a justification for courts picking any answer they prefer. Just the reverse: The less clearly the Constitution addresses any issue, the less the justification for judicial invalidation of what elected branches have done. The more unspecific a text, the more room it leaves for democratic choice. This is a feature, not a failure, of Originalism.

Other prominent Originalists who believe that judicial deference and modesty are essential components of the theory include Professors Michael McConnell, Rick Duncan, and Steve Smith. For example, Professor Duncan, objecting strongly to Roe and Obergefell v. Hodges, has said that "of course, some results that liberal elites love, such as the Court created right to abortion-on-demand and the judicial re-definition of marriage to include same-sex couples, are based upon non-originalist reasoning. Originalism could never have reached these results." No doubt many originalists agree with Duncan. Yet, other noted Originalists, such as Randy Barnett, Ilya Somin, and Steve Calabresi, have made originalist arguments for one or both of those cases. That is a broad tent given the importance and controversial nature of both Roe and Obergefell.

More importantly, Originalists like Randy Barnett, Ilya Somin, Ilya Shapiro, Jack Balkin, and Evan Bernick all reject substantial deference when it comes to originalist approaches to constitutional interpretation.  . . .

And from the conclusion:

Every time I raise this issue with Originalists, they respond that they do share something very important in common. They say most Originalists agree with [Lawrence] Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges. Leaving aside that some prominent Originalists such as Professor [Steven D.] Smith advocate for a more intent-style as opposed to public-meaning approach to originalism, the reality is that just repeating those two principles (fixation and constraint) without more tells us little about how originalists would actually resolve hard constitutional cases. As noted above, some Originalists favor aggressive judicial review, some deferential review; some believe we are bound by what people living in 1787 or 1868 thought about specific questions, while others think we can disregard those expectations if they are based on mistaken facts (which in the case of sex discrimination I would argue are really changes in values). And I haven't even mentioned the many different approaches to integrating non-originalist precedent into a serious and workable theory of originalism, which is an issue that divides many Originalists.

I am far from the first scholar to point out how many disparate theories of originalism are embraced by self-identifying Originalists. Professors Tom Colby and Peter Smith have raised this issue in a series of articles, concluding that originalism today is a "smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label." 

Ilya Somin responds at Volokh Conspiracy: Is Originalism a Theory? Is Living Constitutionalism?  He argues:

Segall is right that originalists disagree amongst themselves on many issues. ...

At the same time, however, Segall is wrong to deny there are important areas of agreement among different types of originalists. As he himself notes, his originalist critics "say most Originalists agree with [Larry] Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges." Segall complains that this doesn't provide sufficient indication of how originalists would resolve "hard cases." But even if a methodology does not by itself settle all disputes about hard cases, it is still significant, because it provides a road map for how to go about resolving these issues. In truth, no constitutional theory can resolve cases by itself. Such resolution also requires understanding of relevant factual evidence, institutional constraints, and perhaps other factors, as well. For example, in my view, originalist methodology justifies striking down sex-discriminatory laws that most would have considered constitutional in 1868, because we now have better factual evidence on the capabilities of women. Much (though not all) of the disagreement among originalists turns on these kinds of issues.

As originalist legal thought has developed, internal disagreements among originalists have clearly grown. But that does not mean there is no longer any significant common ground among them. To use an admittedly imperfect analogy: over time, many internal disagreements have arisen between different types of Christians. They disagree amongst themselves on numerous theological questions, and also on practical moral and political issues, such as abortion and the death penalty. But there are still significant commonalities among Christians that separate them from adherents of other religions (and from atheists and agnostics). For example, Christians overwhelmingly agree on the crucial importance of Jesus Christ (even while differing on its exact nature), and on the idea that the Old and New Testaments contain some sort of divinely inspired moral guidance. Similarly, originalists agree on the importance of an unchanging original meaning of the Constitution, even as they differ greatly on exactly what that meaning is, and how courts (and others) should apply it.

Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.

And on living constitutionalism:

If disagreement on various theoretical issues and case outcomes does disqualify originalism from being a theory, the same applies to living constitutionalism. Like originalists, living constitutionalists also disagree among themselves on basic theoretical issues, on the extent to which courts should defer to the other branches of government, and on case outcomes. For example, living-constitutionalist opinion on judicial deference ranges from those who would do away with binding judicial review almost entirely (e.g. - Mark Tushnet and Larry Kramer) to those who advocate more robust judicial scrutiny of many types of legislation than exists today (e.g. - the late Ronald Dworkin). On basic theoretical premises, living constitutionalists disagree even more than originalists do. For example, there are huge differences between John Hart Ely's "representation-reinforcement" theory, David Strauss' "common law constitutionalism," Ronald Dworkin's moral approach to constitutional interpretation, and Bruce Ackerman's theory of "constitutional moments."