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08/29/2019

Eric Segall on Originalism and Structural Reasoning
Michael Ramsey

At Dorf on Law, Eric Segall: Strange Bedfellows: Structural Arguments and Originalism.  Fro the beginning:

I'd like to call attention to a wonderful new essay by Professor Thomas Colby titled "Originalism and Structural Argument" published in the Northwestern University Law Review [ed.: noted here]. Colby raises serious questions about federalism and separation of powers cases that most originalists favor but which are difficult to reconcile with originalist methodologies. Colby, a long-time critic of originalism, especially the so-called “New Originalism,” contends that cases like Printz v. United States (Congress can’t commandeer state executives unless it does so incidentally through laws applicable to private actors too), Alden v. Maine (states have sovereign immunity from federal question suits in their own courts), and Seminole Tribe of Florida v. Florida (states can’t be sued in federal courts by citizens of their own states), are all based on non-textual, structural arguments arguably inconsistent with the originalist canon. Colby’s arguments are strong and should be wrestled with by originalist scholars who favor the results in these and similar cases.

Colby correctly points out that, although there are numerous and varied originalist theories, most of them are centered around the importance of constitutional text. Professor Lawrence Solum, the only law professor to testify about originalism during then-Judge Neil Gorsuch’s confirmation hearing, said during his testimony that the “whole point of originalism is to respect the text.” Numerous prominent academic originalists such as Michael Paulsen, Stephen Calabresi, and Saikrishna Prakash, as well as many others, give the text interpretative primacy, and, according to Colby, argue that “once a judge deviates from the ratified text, she is making law, rather than following it.”

...

Hence the conundrum: anti-federal power cases like PrintzAlden, and Seminole Tribe, hailed as correct by most conservative originalists, are based on general structural arguments, not specific constitutional text. Nowhere in the Constitution is there a syllable suggesting Congress cannot commandeer state legislatures, that states can’t be sued by their own citizens in federal court, or that states can’t be sued under federal law in their own courts. Numerous other cases based on structure not text could be added to the list. Shelby County v. Holder articulated an equal state sovereignty principle limiting Congress’ powers under the Reconstruction Amendments, and recently the Court held states couldn’t be sued in the courts of other states. despite an absence of text supporting either result. All of these cases are based on general and contestable structural principles underlying our constitutional system, not the original public meaning of the constitutional text.

And this even sharper point from later on: 

This coming together of originalism and living constitutionalism is reflected in the second major issue originalists must grapple with when defending the Court’s federalism cases striking down legislation based on structure not text. The type of reasoning used by Supreme Court Justices in these cases is, as Colby persuasively points out, indistinguishable from the “penumbras and emanations” rationale of Griswold v. Connecticut. That holding, of course, led to the judicial creation of the controversial right to privacy which formed the basis of Roe v. Wade, the very case which in large part gave rise to the originalist movement, and which is still attacked by most originalists today.

An insightful and challenging critique, both in Professor Colby's article and Professor Segall's post.  I agree in part and disagree in part.  I agree that many of the opinions mentioned are dubious on purely textualist grounds (as I hinted in my Notre Dame Law Review piece on Justice Scalia's originalism) and with my inclinations to textualism they make me uneasy.  (Some I think are more easily defended on textual grounds than others -- see my post here sharply criticizing the Franchise Tax Board v. Hyatt decision).  But I think many of them (not Hyatt!) are defensible on originalist structural reasoning, which I think is very different from living constitutionalism.  Originalist structural reasoning seeks to preserve the structure the framers designed, and thus to preserve their expectations about constitutional government.  Living constitutionalism, especially in the cases Professor Segall cites, reaches results contrary to the framers' expectations and design.