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Eric Segall on Stephen Griffin on Optimistic Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Optimistic Originalism by Professor Stephen Griffin: A Must Read (commenting on this article by Professor Griffin).  From the introduction:

One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and harshly discriminate against women, such as Illinois' law barring women from being attorneys which the Supreme Court upheld in 1872. Yet, few Originalist scholars today are willing to live with those results (and it is unlikely any judge could be confirmed who took those positions). This problem has led to what Griffin accurately describes as "Optimistic Originalism."

Thoughtful and usually careful scholars Michael McConnell and Steve Calabresi are two among many whose historical work Griffin politely but convincingly demonstrates is more optimistic than accurate. McConnell wrote the seminal scholarly article arguing that Originalism and Brown v. Board of Education could go hand in hand. There have been many rebuttals to that claim by other distinguished scholars and Griffin collects those, adds his own original critique to that work, and shows persuasively that one must, in fact, pick sides--one can be a public meaning Originalist, or one can be a supporter of Brown, but one can't be both.

Griffin points to a host of other problems with how public meaning Originalists have looked at historical evidence to support their claims, and argues the following:

From their [public meaning Originalists] point of view, everyone who participated in the debates in Congress, indeed possibly everyone who lived in the nineteenth century, could have misunderstood their own law. I suggest we should be deeply uneasy about rendering irrelevant so much of the actual deliberation that occurred throughout the Civil War and Reconstruction. We should be uncomfortable with denying the reality of the War, so to speak. We should think about the implications of giving ourselves permission to bypass the way history actually happened. Doing this arguably denies us the explanatory and normative purchase that comes with appreciating the genuine difficulty of the constitutional questions that troubled nineteenth-century America. In approaching legal meaning in this way, public meaning originalism makes the fraught process of constitutional change disappear.

Griffin argues throughout the article that public meaning Originalists focus too much on text and not enough on historical context to support their arguments. The practitioners of public meaning Originalism fail to "consult the self understanding of the participants who enacted the amendments, " and thus "take on board an implausible set of meanings."

The reason that public meaning Originalists largely ignore the subjective understandings of the people living in the 19th century is that numerous academic Originalists dropped original intent originalism after a series of devastating critiques launched at it by scholars like Jefferson Powell and Paul Brest. But by minimizing and at times ignoring what people at the time believed the Fourteenth Amendment meant, Griffin persuasively argues public meaning Originalists simply get the history and context of that Amendment wrong. 

I agree that Professor Griffin's article is an important challenge to originalism and that it fairly critiques some versions of originalism as they contend with the 14th Amendment.  As came out in the presentation of this article at the originalism conference in San Diego, however, it's odd that Professor McConnell ends up being a central target.  Although McConnell's methodology is nuanced, he is probably closer to an original intent approach than many contemporary originalists, and in any event he is not associated with the New Originalist school that heavily discounts the ratifiers' expected applications of their own text.  New Originalists do seem somewhat vulnerable to Professor Griffin's critique (that modern originalism exalts abstract text over history and context) but Professor McConnell's work is just the opposite -- it is heavily informed by history.  Perhaps Professor Griffin thinks that historical account is wrong, but that's a different critique from saying that originalists "largely ignore the subjective understandings of the people living in the 19th century."  There are versions of originalism that "largely ignore the subjective understandings of the people living [at the time of enactment]" but that is not a necessary principle of public meaning originalism, as practiced by Professor McConnell or by other central figures such as Justice Scalia.

Rather, I think there are two distinct schools of optimistic originalism.  One thinks that the (bad) intentions/expectations of the drafters and ratifiers of the 14th Amendment can be ignored or discounted because of a theory of the meaning of texts, which allows a (good) meaning to emerge irrespective of original intentions/expectations.  The second thinks that the supposed (bad) intentions/expectations of the drafters and ratifiers are overstated, and that in fact the drafters and ratifiers had bold aspirations that were part of the text but (it quickly became apparent) could not be realized in practice.  They may both be wrong, but they are wrong for different reasons.