« John McGinnis Reviews Mark Tushnet's "Taking Back the Constitution"
Michael Ramsey
| Main | Harold J. Krent: Can President Trump Be Impeached As Mr. Trump?
Michael Ramsey »

08/30/2020

Eric Segall on Legal Realism in Constitutional Law
Michael Ramsey

The recent exchange on this blog between Eric Segall and Chris Green (here and here) focused on one part of Professor Segall's post (at Dorf on Law) on legal realism and constitutional interpretation: We are All Legal Realists Now.  Here is the introduction:

[Legal realism] is extremely important given the trope that has been circulating among scholars and even Supreme Court nominees that Elena Kagan said at her confirmation hearing, "we are all originalists." This statement was proudly repeated by Justice Kavanaugh at his confirmation hearing, and it has been thrown at me numerous times during my debates with originalists, who often add the word "now" to Kagan's quote.

This post argues that originalists employing Kagan's line to defend originalism ignore the context of her statement. I also suggest that "we are all legal realists now" presents a much more accurate understanding of constitutional interpretation as it is actually practiced by our judges than the slogan "we are all originalists now." This post is purely descriptive and leaves normative concerns for another day.

Here is Justice Kagan's full quote about originalism: "Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they tried to do. In that way, we are all originalists." I think what Kagan pretty obviously meant is that where the Constitution's text is precise and rule-like, judges follow it, but where the text is imprecise and is more principle-like, judges apply that principle with reference to a host of factors, including original meaning but not just original meaning. 

...

Where the text is unambiguous, we don't need fancy theories of interpretation to explain why judges usually follow it (in the rare cases implicating clear text). What makes constitutional law so hard is the great legion of cases when judges have to apply largely indeterminate text to new problems. We all agree that free speech is a worthy aspiration, as are other constitutional limitations on government behavior, such as that it should not deny people the equal protection of the laws or due process of law. Moreover, some originalists even think that the Ninth Amendment allows judges to find unenumerated rights. The hard part is how should judges go about those difficult tasks, and that is where legal realism comes in because few scholars or judges would say that resolving these kinds of cases simply involves reading text and history and mechanically applying those sources of law to new problems or changed circumstances. That process is not an easy one to describe but saying "we are all originalists" does not even come close. Legal realism comes much closer.