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Eric Segall on Stephanie Barclay on Originalism (with Comments from Andrew Hyman and Eric Segall)
Michael Ramsey

In the Deseret News, Stephanie Barclay (Notre Dame): Why constitutional originalism is not partisan,  From the introduction:

During confirmation hearings in recent years, the judicial philosophy known as originalism has faced nearly as much media scrutiny as the judicial nominees themselves.

When asked to explain this philosophy, then-Supreme Court nominee Amy Coney Barrett explained, “in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.” Supreme Court Justice Neil M. Gorsuch wrote in Time magazine that the originalist school of thought “seeks to conserve the meaning of the Constitution as it was written.”

Put another way, originalism teaches that the Constitution’s meaning is fixed at the point it was ratified by “We the People.” And when that meaning can be discerned, a judge’s job is to faithfully apply that law to the case at hand. Originalists argue that this principle is necessary to have a “government of laws, not of men.”


In other words, originalism done correctly should lead to rulings that are less likely to reflect the mere partisan preferences of a jurist.

At Dorf on Law, Eric Segall responds: Originalism as Myth.  From the core of the argument:

Virtually all originalists today agree that the one thing the many different families of originalism have in common is the bottom-line assumption that the meaning of the Constitution is fixed when ratified. But this bedrock premise is demonstrably false when it comes to virtually all constitutional litigation and even constitutional disputes outside the courts. As Professor Richard Fallon of Harvard Law School argues in an excellent recent paper, constitutional provisions simply do not "have a single, factually identifiable, original linguistic meaning."


The litigated Constitution provides general aspirations that most Americans, or at least most lawyers, law professors, and judges, agree with. Who is not in favor of freedom of speech, free exercise of religion, the equal protection of the laws, and granting everyone due process of law? Similarly, who doesn't disfavor cruel and unusual punishments, unreasonable searches and seizures, and double jeopardy? But constitutional law is not a referendum on the desirability of those aspirations. Instead, constitutional law is about whether current governmental decisions violate those aspirations. 

The reality on the ground is that the "meaning" of those vague and imprecise aspirations in 1791 or 1868 cannot be coherently applied to new problems, conditions, and technologies that the people who ratified those provisions never could have anticipated. Sure, there are paradigm applications like prior restraints or laws formally denying police protection to people of color but issues like those simply do not get litigated often enough to matter. What actually gets litigated or disputed are questions that no reasonable person could say are resolved by the so-called "fixed meaning" of imprecise language written centuries ago, Moreover, even if there once existed such a fixed meaning, its applications can change if judges think relevant facts have changed. Given that exit strategy, originalism simply does not occupy a meaningful space separate from living constitutionalism.

I have two responses.  The first (familiar to readers of this blog) is that Professor Segall overstates the extent of constitutional ambiguity.  My view is that originalism provides a reasonably determinate answer in many -- though surely not all -- litigated  cases.  (Often the answer is that the Constitution doesn't speak to the issue and so leaves it to the political branches).  Second, the existence of some cases that cannot be resolved by originalism doesn't invalidate originalism -- it just means originalism doesn't have all the answers.  Moreover, a plausible version of originalism holds that where originalism cannot provide an answer, a judge has no authority to override a statute or executive action.  This follows from the theory of judicial review expressed in Federalist 78 and in Marbury.  On this view, originalism does have the capacity to resolve litigation involving vagueness and ambiguity.

Professor Segall also faults Professor Barclay (and Justice Gorsuch) for citing Dred Scott v. Sandford as a failure of nonoriginalism: "Originalists need to stop pretending that the problem with Dred Scott is its lack of originalism. It is not true."  He quotes Chief Justice Taney in Dred Scott:

[The Constitution] is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.

It's true that this is a robust statement of originalism (and, incidentally, refutes claims that originalism was invented in the modern era by Robert Bork in the 1970s).  Yes, Taney felt compelled to claim that he was applying the Constitution's original meaning, particularly in light of Justice Curtis' appropriately harsh dissent.  The problem in Dred Scott was that Taney then manifestly misapplied the Constitution's original meaning (as Curtis' dissent makes clear).  There's simply no plausible originalist argument that the Constitution precluded free Blacks from citizenship: not only does the Constitution's text say nothing on the subject, but (as Curtis' dissent shows at length) free Blacks were citizens in some states at the time of ratification.  Further, there's simply no plausible originalist argument that the Constitution precluded Congress from prohibiting slavery in the territories: the First Congress prohibited slavery in the Northwest Territories (and no one at the time even suggested that was unconstitutional), and Taney's contrary claim under the due process clause (an early version of "substantive" due process) had no historical or textual basis.  Despite Taney's invocation of originalism as a general matter, the conclusion is inescapable that he departed from the original meaning for policy reasons (just as Curtis' dissent said he did).

ANDREW HYMAN COMMENTS:  Taney’s argument that Congress had no power to prohibit slavery in the territories was based upon a convoluted and non-originalist reading of the Territories Clause according to which that Clause did not apply to territory acquired after the 1780s:

The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power 'to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;' but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government.

This is why I think it’s a mistake to attribute Taney’s position (on congressional power to ban slavery in the territories) to “substantive due process.”  Other than that, I agree 100% with what Mike Ramsey said here.

ERIC SEGALL REPLIES:  A form of originalism that requires the plaintiff to show through clear and convincing evidence that the government has either violated clear text or mostly uncontested history before a plaintiff wins is a form of originalism I have long advocated.