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11/21/2019

Segall on Descriptive and Normative Theories of Originalism
Mike Rappaport

Eric Segall raises the important distinction between two different types of originalist theories.  One type of theory – a descriptive theory – holds that originalism has been the dominant approach to constitutional interpretation throughout American history and then uses this prevailing approach as the main (or at least one important) argument for using that approach today.  Another type of theory – a normative theory – acknowledges that originalism has not been employed for significant portions of American history, especially since the New Deal, but argues that originalism should still be employed today based on normative arguments. 

Eric places me in the latter grouping, which is correct, but with one significant amendment.  Under my approach to constitutional interpretation (written with John McGinnis), the early interpretive approaches to the Constitution, beginning at the time of the Constitution, were originalist.  Although these early approaches could differ (as with the disagreements between Thomas Jefferson and John Marshall), the various dominant approaches at the time were all versions of originalism.  It is only as the years passed, and especially beginning in the New Deal, that constitutional interpretation came to be inconsistent with originalism.  (Thus, I agree with Mike Ramsey that the early interpretations of the Constitution were originalist and that it is only over time that they become largely nonoriginalist.)       

Some advocates of the descriptive approach criticize the normative theory as “mere law reform.”  The idea seems to be that the most important arguments for originalism are based on what is the current law and that other arguments are of lesser weight.  I disagree.  If one employs a positivist theory of law, then the case for following the law may be weak, because the law might be normatively unattractive.  Moreover, in the case of the U.S. Constitution, the Constitution’s original meaning ended up being changed during the New Deal without acknowledgment of what was occurring and without constitutional amendments – a quite normatively unattractive process.    

Finally, I should clarify my position on the Originalist Positivism of scholars such as Will Baude and Stephen Sachs, who are normally treated as within the descriptive group.  In writing this post, I don’t want to be seen as necessarily rejecting their position that originalism is the law today.  Baude and Sachs have a sophisticated defense of their claim.  Whether one accepts that view turns on disputed questions within positivism and on the content of the rule of recognition.  I don’t have strong views about these matters.  But I should note two aspects of their argument.  First, the case for originalism for me does not turn on these disputed questions, but instead on a variety of other, principally, normative arguments.  Second, even if one does accept Baude and Sachs’s view of these matters, it does not change the fact that large portions of our current law do not conform to the Constitution’s original meaning.