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09/10/2019

Eric Segall on Barnett and Bernick and the Spirit of the Constitution
Michael Ramsey

At Dorf on Law, Eric Segall: A Unified Theory of Originalism and Living Constitutionalism.  From the introduction: 

A recent article by Professor Randy Barnett, one of our country's leading originalist scholars, and Evan Bernick, currently a law clerk for Judge Sykes of the Seventh Circuit, articulates what the authors call a "unified theory of originalism." Their thesis is succinctly stated in the first paragraph of their article:

Constitutional originalism is defined by a commitment to the original meaning of the letter of the constitutional text. Our thesis is that originalism must be committed to the Constitution’s original spirit as well—the functions, purposes, goals, or aims implicit in its individual clauses and structural design. We term this spirit-centered implementation 'good-faith constitutional construction.'

There is much to commend in this attempt to describe how judges should decide hard constitutional cases. In fact, absent a theory of judicial review that advocates for a clear error, strongly deferential approach (my personal preference), Barnett and Bernick have articulated a powerful guide for judges to use to decide whether laws violate the Constitution.  But like most originalist scholarship that does not include strong deference, what Barnett and Bernick are suggesting is indistinguishable from how most so-called living constitutionalists think judges should decide cases. They could have titled their piece "A Unified Theory of Judicial Review for Originalists and Living Constitutionalists," and they would not have had to change a single word.

And from later on:

In this article, [Barnett] and Bernick now contend that "construction not only can but must be originalist." The authors claim that "[g]ood-faith constitutional construction seeks to implement the Constitution faithfully by ascertaining and adhering to the original functions of the constitutional text—its 'spirit.'”

...

How should judges ascertain the Constitution's "spirit" when the text itself does not resolve the problem at issue? The answer is that because the Constitution "was the product of deliberate human design rather than uncoordinated human action . . .we can attempt to reverse engineer the design from close examination of its workings. But we can also seek out the explanations left behind by its designers. Even if these explanations were not published, they would still help us to understand the functions of each constituent part."

Quoting, of all people the person who first coined and then rejected the term "originalism," Professor Paul Brest, Barnett and Bernick say that even "Brest acknowledged that the 'general purposes' of constitutional provisions are ascertainable and that it is 'a perfectly sensible strategy of constitutional decisionmaking' to seek to adhere to them."  Barnett and Bernick approve of Brest's belief that a “moderate intentionalist applies a provision consistent with the adopters’ intent at a relatively high level of generality, consistent with what is sometimes called the purpose of the provision." The moderate intentionalist “'attempts to understand what the adopters’ purposes might plausibly have been, an aim far more readily achieved than a precise understanding of the adopters’ intentions.'”

So here we are. A judge engaged in good-faith constitutional construction should attempt to discover the general purposes of the Constitution, sometimes at a "relatively high" level of generality, and then apply those purposes or spirit to the case at hand. When doing so, we don't ask how the framers or ratifiers would have answered questions they could not have anticipated, like the constitutionality of bans on violent video games, nor are judges bound by the framers' specific expected applications of vague text to questions they did anticipate, like whether women have the right to be lawyers, if those conclusions were based on what judges today think are mistakes of fact.

It should now be obvious to the reader that there is a lot to commend in this "unified originalist theory" but that this approach also leaves judges enormous discretion to decide hard cases, and more importantly, is exactly how the Supreme Court has been deciding cases for centuries. In other words, non-originalists would agree with this approach, though they may call it something different, like pluralistic or living constitutionalism, because everyone agrees the general purposes of the Constitution should be applied faithfully by judges, but modern judges may have new facts available to them which justify judges not abiding by the specific applications of the principles adopted by the framers. Everyone, that is, except folks like Bork, Berger, and myself, who advocate(d) for an extremely limited and deferential system of judicial review.