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Eric Segall on Richard Fallon on Selective Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Professor Fallon on Selective Originalism and Precedent (commenting on this article).   Some excerpts:

One of Fallon's important contributions is a descriptive one. As he says, we "do not have an originalist Supreme Court, committed to deciding all or nearly all cases based on original constitutional meanings, but at most a selectively originalist one." Furthermore, Fallon argues that "selective originalism is dishonest and hypocritical and ought to be abandoned."

To support his claims, Fallon points to numerous areas of constitutional law where the Court's decisions are decidedly non-originalist. Readers of my book Originalism as Faith will recognize many but not all of these areas. But before I list those, here is the core of Fallon's descriptive claim:

Selective originalism is a practice of constitutional decision-making in which putatively originalist Justices of the Supreme Court sometimes ignore or subordinate their avowed originalist premises and instead base their decisions on prior judicial precedents without regard to whether those precedents are defensible on originalist grounds, are binding as a matter of stare decisis, or are reasonably left unexamined based on the principle that the Court should normally decide only those issues framed by the parties’ briefing.

Fallon points to the following constitutional law areas where the so-called originalist justices (including the late Justice Scalia) have not engaged in an originalist analysis to reach the results they advocate:

1) Standing

2) The Power of Congress to Create Non-Article III Courts

3) Freedom of Speech

4) Equal Protection and Equality Norms Generally

5) Congress's Enforcement Powers Under the Reconstruction Amendments

6) Fourth Amendment Cases

7) Takings Cases

Of course, a reasonable response to this account by originalists is that the Court's many non-originalist precedents were decided before the Supreme Court had a substantial contingent of self-identifying originalist justices. But there are at least three responses to that suggestion. ...

To repeat my comments on Professor Fallon's article (which generally go to much of Professor Segall's post as well):

I agree judges should not be selective originalists, in the sense of arbitrarily applying originalism some times and not other times.  But I think criticisms in this direction may overstate for at least two reasons.

First, originalist judges act in a world of widespread nonoriginalist precedents and assumptions.  Judges don't have the resources or institutional capacity to reconsider the foundations of every line of doctrine that comes before them, particularly when the parties take the nonoriginalist foundations for granted.  Moreover, most if not all originalist  judges believe themselves constrained by precedent, including nonoriginalist precedent, to a substantial extent.  It's true that originalist judges (and originalism generally) could do more to develop a fully articulated approach to precedent.  But very often when one sees originalist judges using nonoriginalist reasoning and reaching nonoriginalist results, it stems from the complications of adjudication against the backdrop of decades of nonoriginalist decisions.

Second, it may often be that what is described as an originalist judge using nonoriginalist reasoning is, on closer examination, instead an originalist judge using weak originalist reasoning that the critic finds unpersuasive.  For example, it's very commonly said that the Court's decisions on state sovereign immunity are nonoriginalist (principally because they seem to diverge from the text and purpose of the Eleventh Amendment).  However, at least in Justice Scalia's view, those decisions rested on a background understanding in the founding era that the "judicial Power" vested by Article III didn't extend to suits against a sovereign without its consent.  (I discuss this point in my paper on Scalia's constitutional textualism, here, Part I.A).  That's an originalist claim.  It may be an unpersuasive one.  But that just means it's bad originalism, not that it's nonoriginalist.

To be sure, I agree that it's sometimes unclear why judges use originalism in some cases and not others, and that this is a problem.  (It seems to me this is at least a much a problem for nonoriginalist judges who use originalist arguments when it suits them).  But I think it's important not to overstate the scope of the problem.