Ilan Wurman on Eric Segall on Originalism
Michael Ramsey
At the Claremont Review of Books, Ilan Wurman (Arizona State) has the second part of his review of recent critiques of originalism (here is the first part): Originalism’s New Critics, Part 2: Faith (reviewing Eric Segall, Originalism as Faith). From the introduction:
Georgia State law professor Eric Segall’s new book, Originalism as Faith, makes a more conventional—and for that reason more powerful—attack on originalism. The Constitution is written in such broad generalities—generalities like “due process,” “equal protection,” “cruel and unusual,” “unreasonable searches and seizures,” and “free exercise of religion”—that, Segall argues, even originalists must deploy personal policy preferences and value judgments in most contested constitutional cases. We’re all living constitutionalists, even if most of us pretend to be restrained by the Constitution’s text.
The criticism that originalism is merely a rationalization for conservative political results is not new. But in making his criticism, Segall is refreshingly honest about nonoriginalism. Most nonoriginalists claim they simply interpret the same text originalists interpret, but draw different conclusions based on their examination of contemporary understandings and practices. Only a few nonoriginalists—like Andrew Coan at the University of Arizona—acknowledge that nonoriginalism is about changing the Constitution over time. Segall, I take it, would agree with that characterization of nonoriginalism. More nonoriginalists should openly embrace that view; after all, that’s what they’re actually advocating.
Segall’s account of originalism in practice, and also of some modern originalists, is undeniably fair, thoughtful, and in many ways accurate. Some schools of originalism may very well be hard to distinguish from living constitutionalism. One maintains a distinction between “interpretation” and “construction”—interpretation dealing only with the meaning of the text, and construction dealing with the question of what to do when the meaning doesn’t answer the question at hand. If this distinction is real, and if meaning often leaves a large construction zone, then perhaps originalism can be hard to distinguish from living constitutionalism.
And from further along:
In my view, Segall is wrong because ... [t]he Constitution’s provisions are not the broad and vague generalities that Segall or advocates of a large construction zone believe. The problem with Segall’s argument is that the Constitution simply isn’t written in terms as broad as he thinks. If I am correct, then our disagreement dissolves. After all, if “equal protection” means nothing more nor less than “equality” subject to reasonable discrimination, and if “due process” is nothing but a delegation to future courts to decide what is “fair,” then I suppose there really is no daylight between our theories.
But those provisions are not broad generalities. Due process of law meant something far more specific than Segall seems to believe: no person could be deprived of life, liberty, or property without first having violated some preexisting law. Congress could not, by mere legislative decree, imprison someone or take one’s property and give it to someone else. The government could only deprive an individual of such rights pursuant to existing, known, and established laws. And any adjudication of a violation of those laws had to be conducted pursuant to a minimum of fundamental procedure. “Due process” is not a blank check for the Supreme Court to decide what is “fair.”
Similarly, equal protection is not about equality generally, but about equal protection of law. ...
I think this is right, but even if it's not, I would add that there are many provisions in the Constitution that are obviously not broad generalities -- they are, rather, fairly specific directions about the design of government. Even if originalism fades into nonoriginalism for some constitutional provisions, it remains distinct as applied to others. To pick just one example, the clause at issue in NLRB v. Noel Canning -- the President's recess appointments power -- is not a broad generality. Originalist and nonoriginalist approaches to that clause are quite distinct, as the majority and concurrence in that case demonstrate.