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11/20/2019

Eric Segall on the Descriptive/Normative Gap in Originalist Theory
Michael Ramsey

At Dorf on Law, Eric Segall: Solum on Posner and the Descriptive/Normative Gap in Originalist Theory.  From the key discussion: 

Solum's praise of Posner raises a question I have tried to get academic originalists to engage in but, with one exception (Professor Christopher Green), with little success, and it is an enormously important question for constitutional theory. On the one hand, many originalists, including Solum in his congressional testimony, argue that originalism and textualism have a long pedigree and have traditionally (maybe until the Warren Court), been "the predominate view of constitutional interpretation.... [F]or most of our nation’s history, the Supreme Court has made a good faith effort to follow the constitutional text."

But, on the other hand, many originalists argue that the Court has never been sufficiently originalist and that needs to change. I am quite confident, as I've written here before, that Professor Barnett along with noted academic originalists Michael Rappaport, Richard Kay, Michael Paulsen, and many others, believe that the "predominate view" of constitutional interpretation over the course of the Court's history has been closer to living constitutionalism than originalism, and that is why these scholars write the way they do. They would likely view their work as mostly normative, not descriptive.

Here's my attempt at an answer, not on behalf of any particular person but generally the sense of where conventional originalists are on the matter:  (a) textualist originalism was the leading (or at least a leading) approach to constitutional interpretation in the founding era and for some time after, although -- judges being human -- there are always examples of departures; (b) somewhere in the course of constitutional history -- there is debate about when it materially began -- the Court started to lose its way, shading more and more into nonoriginalist approaches, culminating in the late Warren Court; but (c) in any event and irrespective of the history, originalism is the correct theory of interpretation for normative reasons.

Professor Segall, relying on the outstanding and provocative work of Jeremy Telman, says that the founding era (especially the Marshall Court) was not originalist.  With all respect to Professor Telman, I disagree (though the disagreement may turn on what it means to be originalist).  As Telman shows, Marshall sometimes justified his opinions in part by results.  But Marshall also justified them on originalist/textualist grounds, and I don't think there is any major Marshall (or earlier) decision that isn't very arguably consistent with the text's original meaning.  (As to earlier decisions one might point to Chisholm v. Georgia but I think that decision is arguable justifiable on textualist grounds despite its sharp repudiation in the Eleventh Amendment.)