Eric Segall Poses an Originalism Hypothetical (and my Answer)Michael Ramsey

At Dorf on Law; Eric Segall: Foolish Fixations and Useless Originalism.  From the introduction: 

[T]here is strong consensus among originalists of all stripes that there are two propositions they share and that form the bedrock for all originalist theories. In the words of Professor Lawrence Solum: "Almost every version of originalism claims that the communicative content of the constitutional text is fixed at the time each provision is framed and ratified and that contemporary constitutional practice should be constrained by this fixed original meaning (unless the text is amended)."

Similarly, Professors Randy Barnett and Evan Bernick have written  that "originalists hold that: (1) the meaning of a provision of the Constitution was fixed at the time it was enacted... and (2) that fixed meaning ought to constrain constitutional decisionmakers today." 

Virtually all originalists share these views which collectively are called "The Fixation Thesis." [Ed.: Agreed.]

But here is the problem: this basis for all originalist theory, the glue that holds the diverse elements together, the concepts that virtually all originalists agree are correct, are, in reality, completely irrelevant to how judges actually decide cases or even should decide cases. The "Fixation Thesis" should be discarded by everyone who wants to have a serious discussion about constitutional law.

Here's the supposedly devastating hypothetical:

Imagine a new 28th Amendment. ... [I]t reads as follows:

"Congress Shall Make No Law Abridging the Right to Vote"

... One hundred years from now, Georgia passes a law requiring all voters in the state to show their newly invented identity thumbs before they can vote. An identity thumb is a small device given to all people born in America (other than children of diplomats and invaders) shortly after birth. It is implanted into the thumb and serves as a permanent marker of identification and citizenship.

Of course, sometimes the thumb is implanted incorrectly or forgotten altogether so the system is far from foolproof. A lawsuit is filed challenging Georgia's thumb identity requirement under the 28th  Amendment. There is ample precedent on the subject that "no" does not and cannot mean "no," and that restrictions that make voting harder must be grounded in "compelling governmental interests."

The Fixation Thesis teaches us that the original meaning of the text is binding when it is ascertainable but the expectations of the people at the time can be discarded if based on facts that are no longer true or believed by modern judges to no longer be true. 

How would judges apply the Fixation Thesis to this 28th Amendment problem? The amendment was passed long before anyone had heard of identity thumbs. Was the meaning of the 28th Amendment fixed in a way that could help us decide this case? The answer is obviously no, just as inquiring what our Founding Generation thought about defamation and the internet would be an absurd line of inquiry (even using loose analogical reasoning). 

But wait, it turns out that the generation that ratified the 28th Amendment did have discussions about giving everyone some form of universal identification. In fact, we have records of people before, during, and after ratification debating the pros and cons of that exact question (although of course none involved the permanent, painless, and 98% effective identity thumb). 

It turns out that people 100 years before this case were divided on the question. Some pro-universal identity card folks argued that universal ID would lead to a more egalitarian system of voting, while others were worried the card could be forged and lead to fraud, while still others didn't believe in universal suffrage at all. There was obviously no discussion of the type of technology that exists now (100 years later).

It should be obvious that the Fixation Thesis is no help at all. There is no original meaning that can helpfully shed light on the benefits and detriments of this new technology. There is no "fixed meaning" on the question because, as Barnett, Solum, Wurman, and most originalists seem to accept, applications, not meanings, drive constitutional litigation, and we have no idea how people living 100 years ago would have applied the 28th Amendment to technology they could not have anticipated. 

Here's my response to the main question (the post adds some variations but I'll leave those aside).

(1) Originalists will ask: what is the fixed meaning of the 28th Amendment? To begin, it appears on its face to be absolute, allowing no restrictions on voting, but every system of voting that has ever existed has included (1) limits on who is eligible to vote, and (2) reasonable requirements to demonstrate eligibility.  So we can begin by saying that the original (fixed) meaning of the Amendment acknowledged these basic limitations, because it refers to "the right to vote" -- a right that, at the time, had these qualifications.

(2) As to eligibility, the hypothetical is a little cryptic on this, but I assume its law encompasses a requirement that voters be U.S. citizens (based on the birth requirement).  We can say with a high degree of confidence that the original meaning encompassed this limitation as well, because at the time the Amendment was adopted only citizens were allowed to vote.  Of course, it is not always obvious whether an enactment should be understood to endorse or overturn existing limitations.  But here there is no context given that would suggest a goal of overturning the citizenship limit on voting.  That would be a radical change to the existing system, and the enactment should not be read to accomplish such a change without some context supporting it.  So we will conclude that the apparently comprehensive rule in the Amendment in fact was understood to protect only voting by citizens. 

(3) As to the requirement of the "identity thumb" to prove citizenship, the question again is whether that abridges the "right to vote" as commonly understood at the time  The facts state that at the time of enactment there was some disagreement whether there should be some form of universal identification.  The more salient point, though, is whether at the time of enactment some roughly equivalent requirement of voter identification was permissible as a condition of voting.  The hypothetical facts don't address this, but in real life the Supreme Court has upheld voter identification laws by the states.  So on this basis, at the time of enactment the "right to vote" would not include freedom from reasonable voter identification laws. Again, if context from the time indicated a broadly shared goal to overturn this rule, that would be a different matter, but the facts given do not show a broadly shared goal -- only that some people were uncomfortable with a universal form of identification.  Thus we can conclude that that the apparently comprehensive rule in the Amendment in fact was understood to be subject to reasonable requirements to demonstrate eligibility.

(4) In sum, then, the fixed meaning of the Amendment is that laws restricting voting to citizens and requiring reasonable proof of eligibility are consistent with its original meaning.  Now we apply that fixed meaning to the challenged law.  (I'm ignoring here the fact that the Amendment is addressed only to Congress while the law is a state law -- it's not a very interesting hypothetical if the answer is just that the Amendment doesn't restrict the states, so I'll assume it does.  I don't see how this wrinkle affects the basic question of how originalism would approach the matter: obviously the question would be whether there is some original context, or some other part of the Constitution, that would indicate that the Amendment applies to the states despite its text.)

(5) Applying the fixed meaning to the hypothetical law, first the (implicit) limitation of voting to citizens is clearly constitutional, as part of the meaning understood at the time of enactment (since at the time of enactment, and presumably after the enactment as well,  voting was reserved to citizens).  Second, of course people at the time of enactment didn't have a specific intent regarding "identify thumbs," which hadn't been invented.  But that isn't an obstacle to applying the fixed meaning.  As argued above, the (fixed) original meaning encompassed reasonable limitations to show eligibility, including voter identification laws (assuming they were thought constitutional at the time of enactment).  The hypothetical identity thumbs are a close analogy to practices thought constitutional at the time of enactment.  That strongly suggests that they do not violate the original meaning.

Again, on different facts -- if voter identification laws were not accepted practice at the time of enactment, or if context indicated a goal of radically changing existing practice, we would reach different conclusions about the fixed original meaning.  But that would not undermine the interpretive approach of fixed meaning -- it would just show that in the particular case, there was a different fixed meaning.

(6) In sum, there is a fixed meaning solution to the hypothetical, and none of it turns on living-constitutionalism-style analysis.  The fixed meaning of the "right to vote" included limitations on eligibility (only citizens may vote) and reasonable requirements to show eligibility (including generally available methods of voter identification). I'm not sure why Professor Segall thinks this is a hard question.