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01/22/2019

Eric Segall Responds to Ilan Wurman on Originalism
Michael Ramsey

At Dorf on Law, Eric Segall responds to Ilan Wurman's review of his book Originalism as FaithOriginalism and Deference: A response to Ilan Wurman.  From the main part of the argument:

...[T]the overriding point of Originalism as Faith is that originalists only have two coherent choices. They can use text and history as the main instruments of constitutional litigation if and only if they bring to the table great deference (something very few modern originalists embrace). That is because, if we are not, as Wurman contends, bound by the ratifiers' specific factual assumptions, we will have to bring our modern assumptions into play. But once we do that, there is no material difference between originalists and living constitutionalists. 

The other option, the one I prefer, and the one advocated by Robert Bork, Raul Berger, Lino Graglia, Steve Smith and Michael Paulsen, among a few others, is for judges to only reverse the decisions of other political actors when a party brings to the court clear and convincing evidence of an "irreconcilable variance" between a law and the Constitution. If this is the kind of deference Wurman has in mind, then we agree on the appropriate nature of judicial review, and on what originalism entails. But if he has in mind a larger role for judges to play (and I think he does) and he wants to self-identify as an originalist, he needs a much richer theory of the relationship between recovering constitutional meaning and judicial review than he has presented so far either in his kind review of my book or in his own book. In other words, there is a great tension--one I have not yet seen resolved by any originalist scholar or judge--between Wurman's belief that we are not bound by the factual assumptions of the ratifiers and the proposition that the Constitution "is not an open invitation for judges to import their own, extratextual values into the Constitution." 

I hope Wurman continues to write on originalism and wrestles with that very problem.

Professor Segall also adds this response to my blog comment on his book and Wurman's review: 

Ramsey's example [of the Noel Canning case] reveals a lot about the alleged differences (or not) between originalism without deference and living constitutionalism. First, Canning is the relatively rare case where a theory of deference to political actors is not helpful, because the case involves a direct confrontation between the Congress and the President, not just an individual or group and one branch of government. The judge deciding the case has no choice but to show a lack of deference to one of the two other branches of the federal government. I have always conceded that there are some situations where a strong theory of deference will not materially assist the Court.

Second, even if we know the true original meaning of "recess appointment," that meaning was based on a host of important factual assumptions that Wurman (and I think Ramsey) believe we are not bound by today. In 1787, the Congress met much less frequently than today, travel to and from the capital was obviously much more difficult than today, and the power, prestige, and size of the Executive Branch was completely different compared to the Congress than it is today. The meaning of "recess appointment" may well have been based on any combination of now changed factual assumptions, thus allowing even an originalist judge to update the application of that meaning to modern conditions--in other words, to act exactly like a living constitutionalist.

Finally, and most importantly, unlike words and phrases like "due process," "equal protection," "free exercise," "establishment," and "speech," the phrase "the recess of the Senate" might have had a technical and narrow legal meaning. I can agree with Ramsey that "[e]ven if originalism fades into nonoriginalism for some constitutional provisions, it remains distinct as applied to others," and also argue that the vast majority of litigated constitutional law cases (almost all of them in fact) involve vague and imprecise constitutional text where "originalism fades into nonoriginalism." Given that reality, I can sleep quite well at night reflecting on my book's major thesis that originalism without great deference is indistinguishable most of the time from living constitutionalism, and will ultimately rest on modern values and assumptions, not original meaning.

Without getting into an extended reply, I'll say that I do not agree with the methodology suggested in the second paragraph.  "Recess" (and "vacancy") in the the recess appointments clause had a meaning when the Constitution was ratified and a mainstream originalist would apply that meaning today without any need of "updat[ing]" -- even though, in light of some factual changes and modern conditions, a different rule might arguably be a pragmatically preferable one.

Update by Mike Rappaport: While it is not central to the dispute here, I should note (since it is so often misunderstood) that most of the changes in the world since the Framing suggest a recess appointments clause that is narrower than the original meaning, not broader, as Noel Canning held. If there is air travel today, we have far less need for recess appointments at all.   I make this and other points in this article: Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause.