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Eric Segall on New Originalism (with my Objections)
Michael Ramsey

At Dorf on Law, Eric Segall: The Concession that STILL Dooms Originalism.  From the core of the argument: 

Under the New Originalist approach, and in the [in]famous construction zone, judges have discretion to bring an almost endless array of post-ratification facts and changed cultural values into consideration when resolving constitutional cases, diluting any meaningful constraining effect of the text’s original meaning. For example, I previously quoted Professor Solum himself for the following proposition shared by most New Originalists: 

[I]n 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 [Privileges and Immunities Clause] 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. The Constraint Principle does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.

Notice that Solum does not merely refer to changed facts but "changing beliefs about facts." This idea is similar to Professor Barnett's belief, echoed by almost all New Originalists, that judges today can discard expected applications, like women are not protected from discrimination in public employment by the 14th Amendment, if facts (read values) have changed (enough). It is on a similar principle that Professor Barnett once expressed that he "is sympathetic" with Professor Jack Balkin's claim that Roe v. Wade could be justified on an originalist basis even if no one in 1868 thought that abortion was a constitutionally protected right. 

But the constitutional text that gives rise to almost all modern lawsuits was ratified in either the late 18th or middle 19th centuries, when our country was different in most material ways than today relevant to lawsuits that are brought today. What all of that means is that this form of originalism (without super-strong deference) is indistinguishable from living constitutionalism, or for that matter common good constitutionalism. There is simply no constraint on judges from this form of originalism in litigated constitutional cases.

He goes on to argue:

The non-delegation doctrine is all the rage today among many originalists. But even if there was a strong originalist basis for that view (and there isn't), a judge could always say, "well, we now know what caused the New Deal and that changes how judges deal today with the expected non-delegation doctrine.” Similarly, let's say the unitary executive theory has a sound originalist basis. But no one in 1789 could destroy the world by pushing a few buttons. That new fact could make a huge difference in how we view the war-making power and under what circumstances the President can fire people or not in the chain of command or whether the President can use offensive weapons to kill US citizens abroad who we think are are terrorists but no court has so found. The point is there are always changing facts relevant to all litigated constitutional cases that involve text written so long ago. And remember, a judge does not have to find the facts have actually changed, just that beliefs about facts have changed.

Neither Professor Solum nor Barnett has ever responded to this argument, though they are well aware of it. In fact, I made this argument in a room they were both in at the San Diego Originalism Conference in February. 

I can't speak for Professors Solum and Barnett, and I don't really consider myself a New Originalist (not with capital letters, anyway). But I think there's a fundamental difference between the Bradwell example and the separation of powers examples Professor Segall gives.

His examples are ones in which a judge concludes, based on new experiences, that the structure established by the Constitution's original meaning is normatively bad, and so decides to change it.  I'll take the unitary executive point, as I know that area the best.  Assume Justice Scalia's view in Morrison v. Olson is correct as an original matter -- that is, the original meaning was that all of the executive power had to be vested in the President or someone fully controlled by the President.  The modern presidency is of course different from the eighteenth century version on many dimensions.  That may make the framers' design unwise.  But it does not change the original meaning of the Constitution or the way it would apply to modern circumstances, which is that all of the executive power had to be (and today must be) vested in the President or someone fully controlled by the President.  No fact relevant to the application of the original meaning has changed, although facts relevant to the wisdom of the original meaning may have changed.  I think no originalist would allow the application of the original meaning to change in these circumstances.

Contrast Bradwell:  assume the original meaning of the relevant clause was that generally people must be treated equally with respect to certain rights, including practicing law, but differences were tolerated where people were differently situated.  Further assume that the reason the Court upheld the ineligibility of women in Bradwell was the (mistaken) factual claim that women were differently situated with respect to practicing law.  We now know the factual claim was mistaken.  One might well say, then, that the original meaning now applies differently.   That's not because we think the original meaning needs to change in light of new circumstances.  The original meaning hasn't changed: the meaning is still that generally people must be treated equally with respect to certain rights, including practicing law, but differences may be tolerated where people are differently situated.  Rather, it's because we now understand that people originally thought to be differently situated are not differently situated.  The change is not in meaning, but in facts underlying how the meaning is applied.  That's completely different from the unitary executive example, where the meaning itself would have to change to yield a different result.