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08/27/2020

A Response to Chris Green
Eric Segall

Chris Green writes: "No (first-order) originalist thinks that 'judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning.'"
 
 
“In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender…Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts."
 
 
“Nearly all originalists recognize, that [Originalism requires] updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.”
 
And, Ilan Wurman from his book A Debt Against the Living: “Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve."
 
I rest.