« Aditya Bamzai & Samuel Bray: Debs and the Federal Equity Jurisdiction
Michael Ramsey
| Main | Jed Shugerman: The Bi-Partisan Enabling of Presidential Power
Michael Ramsey »

01/16/2023

Eric Segall on Baude and Sachs on Vermeule on Originalism [Updated with my Thoughts] [and a Response]
Michael Ramsey

At Dorf on Law, Eric Segall: Of Vermeule, Baude and Sachs, and Saving Originalism by Destroying It (commenting on this review of Adrian Vermeule's Common Good Constitutionalism). From the introduction:

One of the recurring themes of both Vermeule's critiques of originalism and my own is that once judges are allowed to discard the expected applications of those who ratified the relevant constitutional text, which most of today's originalists say is permissible, then originalism is essentially irrelevant to constitutional litigation and becomes a smoke screen for the imposition of modern-day judicial value judgments--they very thing originalists says they don't want. ...

Baude and Sachs react quite harshly to the "illusion" language but their defense of originalism proves the point Vermeule, I, and many others have been making for a long time. The reason today's originalism is an illusion according to Vermule, in the words of Baude and Sachs, is because so "long as it’s 'possible' to 'contradict[] the unanimous expectations of the enacting generation,' Vermeule argues, then 'original’ meaning is ‘fixed’ in only the most nominal sense." Baude and Sachs respond to this critique not by denying that originalism allows judges to discard well-known expected applications of constitutional text but by confirming that originalism allows this move. They say the following:

This issue...has been solved, as one can discover by reading the works cited in the book’s endnotes. A 'familiar feature of legal rules is that the same rule can produce changing outcomes over time....' As Professor Christopher Green has described, legal norms often operate as functions from facts to legal outcomes. As their designated inputs change, the outputs change accordingly. But the rules themselves remain the same, because not every change in facts affects a designated input.

In plain English, Baude and Sachs argue that a vague and imprecise text such as the equal protection clause may lead to different and updated judicial applications over time--applications that may contradict what the ratifiers of the equal protection clause thought it meant as to a specific problem--if the facts change. They approvingly cite Village of Euclid v. Ambler Realty Co., for the proposition that "while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions." And furthermore, according to Euclid, “a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles." Baude and Sachs apparently believe that this description of constitutional law is "originalist."

And in conclusion:

Originalism has no real purchase in the cases that we care most about because they involve open-ended constitutional language that calls for judges to make contemporary judgments about circumstances, facts, and perceptions of facts that have changed in numerous ways since 1791 or 1868. Arthur Machen knew this in 1900 and most of us know it today. If originalism is our law, as Baude and Sachs say, that's only because their version of originalism is effectively living constitutionalism. In order to save originalism, they had to destroy it.

ADDED: My thoughts --

I've objected to this line of argument many times and so won't repeat my views at length.  I'll only say this: Consider the leading recent Supreme Court cases, Bruen and Dobbs.  In my view, in neither case does the correct originalist analysis depend at all on "contemporary judgments about circumstances, facts, and perceptions of facts that have changed in numerous ways since 1791 or 1868."  As to Dobbs, the originalist question is whether there was a broad understanding in 1868 that abortion was a core right that was viewed as one of the "privileges or immunities of citizens of the United States."  The answer is (so far as I can see from the historical record), clearly not.  Dobbs is a hard case because of precedent, not because of the difficulties of understanding or applying the original meaning.  As to Bruen, the originalist question is whether the sort of discretionary licencing program for firearms that New York had in place had any counterparts in mid- to late-nineteenth century practice.  And the answer depends on whether one thinks Saul Cornell is right about the history.  There's no living constitutionalism to any of this.

ERIC SEGALL responds:

The reality is that the Dobbs Court did not ask what the original meaning of the word liberty was or the phrase privileges or immunities but even asking that question isn’t really originalist for the same reasons Bruen is not originalist: constitutional law in 1791 and 1868 was not all or even mostly about history. It was balancing the importance of the right against the states’ interest. By not conducting that analysis in Dobbs or Bruen, the Court was using history but not in an originalist manner as Noah Feldman explained here.