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Harry Litman on Originalism and Expected Applications
Michael Ramsey

In The Atlantic, Harry Litman: Originalism, Divided.  From the introduction: 

Originalism—the idea that the meaning of each provision of the United States Constitution becomes fixed at the time of its enactment—in its contemporary form traces back to the advocacy of a few conservative judges, most prominently Antonin Scalia, in the mid-1980s. At the time, it was a rebel yell. The few self-styled originalists were railing against a long line of judicial precedents, particularly a set of Warren Court rulings that they viewed as mere expressions of liberal policy preferences.

Originalism is now well established, and most of the justices on today’s Supreme Court would express some fidelity to the basic concept. Even Justice Elena Kagan, one of the Court’s more liberal members, said at her confirmation hearing that “we are all originalists” these days. But the concept’s prominence has not provided the clarity some of its early proponents had hoped it would. In fact, fully conceived, originalism does not foreclose but requires the possibility that the provisions of the Constitution are best interpreted to produce “progressive” outcomes.

How is this? Superficially, originalism seems to call for the application of a term’s meaning, frozen from the time of enactment, to a present-day quandary. But this formulation requires an understanding of what, exactly, that meaning is. What is the original meaning of, say, cruel and unusual? Is it the principle those words captured at the time of their adoption, or is it the set of practices that the historical adopters would have considered to be cruel and unusual?

It is not at all clear that the conservative members of the Court today have taken stock of this elementary distinction between what we can call meaning and applications. Very likely, they, and other proud, card-carrying originalists, would reject it out of hand. They would see in the meaning-application distinction the smuggling in of a “living Constitution” that they have strived to bury.

But there is no getting around it, and the constitutional cases that will come before the Court in the next few terms are likely to tease it out.

A forceful and scholarly essay, but it depends heavily on the proposition that the result in Brown v. Board of Education cannot be defended other than by an evolving understanding of "equal protection":

Not only did the legislators who enacted the Fourteenth Amendment not expect that it would mandate desegregated public schools, but neither did society at large—Scalia’s “normal speakers of English.” There is no particular reason to believe that mid-19th-century elected representatives’ views of what equality required were distinct from the public’s. So the disavowal of the framers’ subjective expectations can’t itself anchor an originalist defense of Brown. For that, as the UCLA professor Mark Greenberg and I have argued, you need a distinction between the semantic meaning of provisions—roughly their dictionary definition—and the ways that a speaker or a society applies them. Otherwise put, between original meaning and original applications. The Fourteenth Amendment requires equal protection of the laws. For legislators—and citizens and judges—in 1865 [ed.: 1868], that principle didn’t mandate integrated schools; for Americans in 1965, it did.

I'm not sure that's right (though I'm not enough of a Fourteenth Amendment scholar to say it's wrong).  Still, it seems that the idea that segregation violated the Amendment's guarantees was at least part of the intellectual debate at the time.  Plessy v. Ferguson was not obviously right as a matter of original meaning.  Indeed, I'm inclined to think it was wrong.  And if it was, I'm not sure what's left of this essay.

More generally, there seem to be two narratives about the Amendment's ratification and aftermath.  One (reflected in this essay) is that no one thought the Amendment barred segregation, so originalism's effort to attack Plessy and defend Brown is doomed.  But another is that the post-1868 Supreme Court -- like Northern white society as a whole -- in the face of overwhelming Southern resistance turned its back on the true meaning of the Amendment, and failed to carry through on the Amendment's promises.  I'm not sure which of these is right, but they can't both be.

(Thanks to Andrew Hyman for the pointer.)


Regarding Plessy, it seems to me that Louisiana's Separate Car Act of 1890 violated federal statutory language, e.g. guaranteeing (in the Civil Rights Act of 1866 that was still on the books in the 1890s) that black people “shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” If a black person is penalized for sitting in a certain train car, but a white person isn’t, then it’s kind of hard (probably impossible) to reconcile that racist state law with the federal statute.