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Eric Segall on Originalism and Legal Realism [Updated]
Michael Ramsey

Ar Dorf on Law, Eric Segall: Original Intent, Original Meaning, or Let's Call the Whole Thing Off.  From the introduction:

Michael Rappaport and John O. McGinnis, two of our country's leading academic originalists, recently stated in an essay for a Northwestern University Law Review Originalism symposium that "the debate over original intent and original public meaning has launched scores of law review articles." This observation is both accurate and unfortunate, but not for the reasons provided by the authors.


I am writing about their essay for a different reason, however, than taking sides in the debate over intent versus meaning. Both Rappaport and McGinnis have devoted their enormous energies to books, law review articles, blog posts, essays, and op-eds, discussing how originalists should go about their business.  I will assume for sake of argument, and I think their book "The Good Constitution" supports this hypothesis, that they are talking normatively, not descriptively. Neither man would argue that originalism of any stripe has been the dominant method the Supreme Court has used over time to decide constitutional cases.

As a theoretical matter, their original methods originalism has properly drawn much academic attention because, and, I'm obviously a case a point, originalism is all the rage right now. But if they expect judges deciding real cases that matter to real people and implicate real laws and policies to adopt their interpretative model, they will be sorely disappointed. As I've written many times in this space, the Justices care little about original meaning and/or original intent when reaching their conclusions (as opposed to after-the-fact rationalizations) and mostly about the actual consequences of their decisions. Paraphrasing retired Judge Posner, constitutional law is about values, politics, and experiences, not text, logic, or history. Ironically, the main example used by Rappaport and McGinnis in their essay to support their interpretative preferences also demonstrates how little "interpretation" matters to judges deciding real cases or even to people debating pressing constitutional questions. ...

And in conclusion:

The constitutional language that gives rise to most litigated cases, phrases such as "equal protection," "due process," and "freedom of speech," have no core original meaning when facts and circumstances change so dramatically. What "equal protection" means when applied to today's affirmative action programs cannot be and has not been decided by judges with regard to what the words meant in 1868 before generations of segregation and apartheid were put in place. What "due process" meant in 1787 or 1868 can't be meaningfully applied to the myriad issues regarding technology and modern trials that judges face today. And, as Rappaport and McGinnis concede in their essay, the rise of the internet will inevitably require new constitutional constructions concerning freedom of speech that cannot be answered through the lens of 1787 or 1868 America.

The on-going academic debates over original intent and original public meaning do not matter to judges resolving these kinds of issues because, contrary to THE core assumption held by originalists of all stripes, the meaning of the text at issue in today's constitutional disputes is not fixed (I'll have an upcoming essay devoted exclusively to this point). Constitutional meaning changes as the Justices on the Court and the society around them change, as even the controversy over the bank, occurring shortly after the Constitution's ratification, dramatically shows. And the inevitable evolving nature of constitutional meaning may in fact be the only thing about constitutional law that has never and will likely never change, no matter how many intramural fights smart and engaged academics engage in over the proper methods of constitutional interpretation.

As is usually true of Professor Segall's insightful critical commentary on originalism, I sort of agree and sort of don't.  I agree that politics and values (or maybe I would say ideology and intuition) play and have always played a big role in constitutional law.  But I don't agree that this reality makes originalism an academic exercise.  Originalism does not depend on the proposition that politics has not been part of judging for a long time, nor on the proposition that politics can be entirely removed from judging.  Rather, its aspiration is to make judging less political than it is under living constitution approaches.

I would also like to hear more about what Professor Segall thinks about fixed meaning, but I think he may misunderstand how originalists use that term.  I don't think most originalists claim there is only one possible meaning of a text, in the sense that no one could ever perceive a different meaning in it.  Rather, the core proposition of originalism is that there was a single best meaning of the text (in at least some cases) at the time of enactment, and that that meaning should be "fixed" as the legal meaning despite later attempts at reinterpretation.  Of course it's inevitable that (a) those whose interests are disfavored by the original meaning will push for reinterpretation; and (b) the original meaning of  some text, as applied to some situations, will not yield a definite answer.  Neither proposition is inconsistent with originalism. 

UPDATE:  Professor Segall comments: 

I think that it is hard to believe there was a “fixed” or “best” meaning of the imprecise text that is often litigated for all the reasons Saul Cornell and other historians suggest. I also think the issue isn’t whether there was a “fixed meaning” or “best meaning” but whether there could be such a “fixed meaning” or “best meaning” when imprecise text has to be applied by judges to ever changing circumstances. The concession that many Originalists make that new applications of meanings are both inevitable and even desirable supports, in my opinion, that there is no “there there” when folks use the phrase “fixed meaning.”

My further comment: if that's correct, then in my view the case for constitutional judicial review is greatly weakened, as in effect judges are merely declaring new constitutional rules without the institutional legitimacy to do so.  The core argument in Marbury was that judges have to apply the Constitution when it irresolvably conflicts with a statute (or executive action).  But if the Constitution has no fixed meaning, then there is no irresolvable conflict between it and the challenged actions of the political branches. The judge's preferred meaning is merely one among many.  Why should it prevail over other meanings?  (I think Professor Segall would largely agree with this point, based on his prior writings, but I would not want to speak for him).