Originalism as Faithfulness by Christopher R. Green

Eric Segall’s Originalism as Faith is a quick, easily-digestible summary of the conventional wisdom about the Supreme Court’s relationship to original meaning for large portions of the legal academy. Prominent textbook authors like Deans Erwin Chemerinsky and Geoffrey Stone tout it as “masterful” and “persuasive.” Originalism is false, Segall contends, because its adherents on the Court apply it selectively at best. If even the justices who most prominently claim to follow original meaning don’t take it as binding, why should anyone else? The “faith” of which Segall’s title speaks is a faith in the Supreme Court to govern its decisions by historical standards: a “faith that some combination of text, originalist-era evidence, and history can constrain Supreme Court decision making.” This faith is misplaced, because the Court cannot do so.

Originalism as Faith has one big virtue but four main flaws. Segall properly points out elements of hypocrisy from originalists on the Court, but draws the wrong lesson from that hypocrisy, and muddies three crucial distinctions in constitutional law: between Court and Constitution, between epistemology and ontology, and between application and meaning.

Bipartisan Aristocratic Judicial Constitution-Writing

Since the 1980s, many of originalism’s proponents have prescribed fealty to original meaning as a cure for the Warren and Burger Courts’ tendencies to make things up. Alas, while there is room for disagreement with Segall’s characterization of particular issues, it is hard to evade the general conclusion that all of the justices, professing originalists included, sometimes make things up too. They do not fully live up to their principles. Justice Scalia in his McDonald concurrence advertised his “historically focused method” as the “best means available in an imperfect world” for “restraining aristocratic judicial Constitution-writing.” But Segall’s quick tour of constitutional law shows that there is a good bit of aristocratic judicial constitutional-writing still afoot, outward embrace of originalist principles notwithstanding.

Of course, undermining one argument for a thesis—even its most prominent argument—does not undermine the thesis itself. But it is still a very important virtue of the book, and an achievement of critics of originalism generally. Originalists obviously need to come up with better arguments than “your side makes things up and ours doesn’t.” The originalist brand is not helped by an exclusive association with only one faction of the Court, especially when that faction lives up to the brand so imperfectly.

The Value of Hypocrisy

Segall is right to complain about hypocrisy on the Court. His analysis of the conflicts between originalist justices’ principles and their actions is, however, badly incomplete. He takes hypocrisy as a sign of bad principles. But hypocrisy can instead be a sign of good principles embraced by imperfect people. Judith Shklar has written elegantly about the positive function of hypocrisy in producing embarrassment and shame—or at the very least reputational damage—in those who do not live up to their ideals. Given the universal weakness of human beings, double standards are better than no standards at all. If self-proclaimed “originalists” do not live up to their ideals, their reputations should, of course, suffer. But should originalism’s reputation suffer? Segall identifies several doctrines, purportedly developed on originalist grounds, as evidence of hypocrisy. To take examples from 1995, 1996, and 1997, respectively, he is not a fan of strict scrutiny for affirmative action (Adarand), state sovereign immunity beyond the text of the Eleventh Amendment (Seminole Tribe), and the ban on federal commandeering of state executive officers (Printz). Even granting Segall’s arguments that these doctrines conflict with original meaning, the fact that purported “originalists” like those doctrines doesn’t count against original meaning; it only supplies reason to reject doctrines we might not like anyway. If Segall is right about the historical and textual merits of these doctrines, we can consistently say boo to Adarand, Seminole Tribe, and Printz but still celebrate originalism. Indeed, we can boo Adarand, Seminole Tribe, and Printz because we celebrate originalism.

Constitution v. Court

A second problem with Originalism as Faith is its limitation to the Supreme Court, rather than independently considering the Constitution. Segall’s definition of originalism as faith in the Supreme Court’s ability to discipline itself by history, which he advances only after arguing at great length that such faith would be misplaced, is useful only as a strawman. Only someone interested in fighting against the weakest possible opponents would define originalism as a thesis about the Supreme Court, rather than a thesis about the Constitution. Rather than faith in the Supreme Court, constitutional theories like originalism or its competitors are best seen as theories about how to measure the Court’s own faithfulness. This is what Paul Brest referred to when he coined the term “originalism” in 1980: what should count as “binding authority” in constitutional adjudication.

Like Justices William O. Douglas and Hugo Black and Judge Amy Coney Barrett, I would measure proper constitutional principles not simply by their internal coherence and the ability of judges to live up to them, but by fidelity to the Article VI oath to support “this Constitution.” The word “oath,” however, does not appear in Segall’s book. Attention to Article VI would undermine his exclusively judicial focus, because its oath is extracted not just from the Court, but from legislative, executive, state, and local officers as well. An Article VI–based originalism would claim that constitutional fidelity is simply fidelity to the meaning expressed by the constitutional text in its original context. That meaning is binding even if it does not go far enough or goes the wrong direction; constitutional flaws do not justify tweaking constitutional meaning. Originalism as Faith does not, however, address the meaning of the Constitution itself, but only what the Supreme Court has said about it.

The error here, as I see it, can be compared to pre-Copernican geocentrism. The Supreme Court’s work related to the Constitution—and other officers’ work—properly revolves around the Constitution itself, not the Constitution around the Court. Indeed, the Supreme Court consistently invokes the Constitution when it pronounces its own earlier cases as “wrong the day they were decided.” Casey says this of Plessy, Lawrence of Bowers, and Trump v. Hawaii of Korematsu. As Justice Douglas put it, “A judge looking at a constitutional decision . . . remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.” Given the Supreme Court’s insistence that the Constitution itself matters, not just earlier decisions themselves, an exclusive concern with the Court is self-referentially incoherent. Taking the Court seriously means taking the Constitution seriously, too.

Segall proudly explains his focus on the Court, rather than the Constitution, saying: “I take [Scalia and Thomas’s] opinions as they were written, not as they might be re-imagined by originalist scholars.” This choice of focus makes him neglect the latest scholarship on original meaning. Two examples jump out. He complains that Rappaport and McGinnis fail to discuss affirmative action in their book, ignoring Rappaport’s 2013 article on the issue. He claims that “what is constitutionally ‘proper’ is quite obviously much more in the eye of the beholder than dictated by text, history, or precedent,” ignoring very extensive work that Nelson, Baude, and Lawson et al.—not to mention their many interlocutors—have devoted to the history of “proper” in the Necessary and Proper Clause. A canvass of this history is in order, not a categorical condemnation of the value of the inquiry. These omissions would be fine were Segall’s claims more modest. But Segall’s repeated categorical claims that original meaning cannot resolve particular questions are unjustified in the absence of engagement with the relevant literature.

Ontology v. Epistemology

Another critical distinction that Segall blurs is between what constitutional interpreters are looking for—the underlying ontological reality that renders constitutional claims true or false—and epistemic issues regarding how much proof interpreters, particularly judicial interpreters, need before making such claims. His comments on the relationship of originalism to views about deference illustrate this confusion. Originalism cannot “work,” Segall tells us, without “strong deference.” But what is originalism trying to do? Before constitutional theory does anything else, it should give an account of what we are talking about when we talk about the Constitution. Indeed, it is essential to have a theory of what “the Constitution” refers to—a theory of constitutional truthmakers—just to make sense of claims of constitutional ignorance. Segall repeatedly invokes the imprecision of original meaning and our uncertainty about it as problems for various forms of originalism. But even when we do not know what the Constitution requires, a theory of constitutional truthmakers tells us exactly what portion of reality it is that we are ignorant about. Underlying ontological reality is one concern; epistemic standards of proof and responses to imprecision and uncertainty are another.

Consider the distinction between criminal law and criminal procedure. Criminal law asks when, for instance, defensive force is justified. The same issue arises in torts; acts of justified self-defense generally give rise neither to criminal punishment nor to compensatory liability. Despite turning on the same external elements of material fact and sharing the same underlying issues of law, the two areas are subject to two different standards of proof: beyond reasonable doubt in criminal procedure, but preponderance of evidence in civil procedure. Likewise, the underlying issue of what the Constitution actually requires can be assessed through different standards of proof. If Congress is considering whether to act, for instance, it might act based on the preponderance of evidence that its preferred action is constitutional, while a court might need clear and convincing evidence before declaring a statute unconstitutional. The Court itself justifies deference on the fact that “[t]he Congress is a coequal branch whose Members take the same oath we do to uphold the Constitution of the United States.” Confining constitutional theory to the setting of judicial review leaves inexplicable how judges and legislators might be oath-bound to the same Constitution, as both sets of officeholders regularly claim.

Meaning v. Application

Fourth and finally, upon finding that a version of originalism allows applications to change, Segall repeatedly announces (and see also here and here and here) that it collapses into living constitutionalism. Each time it is made, this claim confuses two different ways that interpreters might update original expected applications. One way is for fixed criteria to depend on changing facts; a very different way is for criteria themselves to grow obsolete. A classic instance of the first way is the census. The Framers expected North Carolina to have fewer representatives than Maryland—the interim rules show this plainly—but they were wrong about population. Given that the original criterion expressed by “according to their respective numbers” is binding, not the original expected applications, constitutional fidelity requires fixing this mistake.

Another easy-to-grasp instance is due process, on the reading—which I happen to think is correct, and especially clearly so for the Fourteenth Amendment—that “due” process of law means traditional, typical judicial process. Traditions themselves can change, even if “due process of law”—that is, the original textually expressed criterion—does not. Justice Scalia’s opinion in Burnham v. Superior Court in 1990, contending for a consensus-based approach to due process in opposition to Justice Brennan’s actual-fairness-based view, noted, “Nothing we say today prevents individual States from limiting or entirely abandoning the in-state service basis of jurisdiction. And nothing prevents an overwhelming majority of them from doing so, with the consequence that the ‘traditional notions of fairness’ that this Court applies may change.” Such changing applications might of course be termed a form of “living constitutionalism” if we want to use language that way. But even if so, updating the facts on which the application of fixed criteria rely is very different from the sort of living constitutionalism that would update the Constitution’s textually expressed criteria themselves because we think they have grown obsolete. Scalia and Brennan’s approaches in Burnham were, of course, very different.

Another example is Justice Kagan’s argument in the recent gerrymandering case, Rucho, that improvements in computer technology render legislative autonomy over district lines in the early Republic obsolete. That is the sort of factual change that makes it more reasonable to give constitutional authority to judges to second-guess district boundaries, but it does not, for instance, turn political rights into civil rights of the sort protected by section one of the Fourteenth Amendment if the very concept of civil rights, i.e., the “privileges . . . of citizens,” encompasses only impartial treatment by the government, not the power to control it.

Distinguishing meaning from application depends on a certain view of language most prominently associated with Frege’s distinction between sense and reference, and the distinction between analytic truths (true in virtue of meaning alone) and synthetic truths (true in part in virtue of the facts). It is not, alas, a view without critics, resulting in long-term trench warfare between those who would distinguish meaning from application and those who would blur them. In the mid-nineteenth century, the distinction was blurred by Dred Scott’s insistence that the Framers were “incapable of asserting principles inconsistent with those on which they were acting,” but many in Congress in 1862, such as John Crittenden and Albert White, insisted that those who understood principles might nonetheless misapply them, and that growing constitutional applications were perfectly consistent with a Constitution that was all the while “inviolate and identical.” In the early twentieth century, the meaning-application distinction was drawn vigorously by one of Segall’s favorite thinkers, Arthur Machen: “[W]hile the Constitution and its construction must remain unchanged, [ ] the validity vel non of a legislative act often depends partly upon questions of fact . . . which . . . may have completely changed.” The Court did likewise in 1926 in Euclid v. Amber Realty: “a degree of elasticity is . . . imparted not to the meaning, but to the application of constitutional principles.” But the meaning-application distinction was disparaged by another of Segall’s early twentieth-century favorites, Jacobus tenBroek, insisting that “the meaning of a word or expression is the thing or things to which it refers.” Among critics of the Warren Court, the meaning-application distinction was disparaged by Raoul Berger but embraced by Robert Bork. Among philosophers, the distinction was drawn by Frege, Mill, Carnap, Grice and Strawson, and about 65% of philosophers today, but criticized by the likes of Quine and 27% of philosophers today. For its part, the Supreme Court today has embraced the distinction in terms echoing Euclid.

What does Segall make of this controversy? Rather than aligning himself with Taney, tenBroek, Berger, Quine, and the philosophical 27% over against Crittenden, White, Machen, Bork, Frege, and the philosophical 65%, he contends that the distinction, even if genuine, does not matter. But this is just a mistake. If the textually expressed criterion is binding as a matter of constitutional fidelity, but depends on the facts, then changes in how the criterion is applied will be legitimate instances of constitutional fidelity, while changing the criterion itself as obsolete will not be.

Segall’s line on the irrelevance of the debate over distinguishing meaning and application would make sense if constitutional legitimacy and fidelity were themselves unimportant. But fidelity to the actual Constitution matters. Given Article VI and the Court’s abjuration of any final-constitutional-truthmaker status for itself, we can only understand constitutional law fully if, from time to time, we lift our eyes up from the Supreme Court to look at our Constitution, and particularly, what its text expressed in its original context. This is true, moreover, even if everything Segall says about the Court is correct.

Christopher R. Green is Professor of Law and H.L.A. Hart Scholar of Law and Philosophy at the University of Mississippi and an Affiliated Scholar at the Center for the Study of Constitutional Originalism at the University of San Diego. You can read more of his scholarly work here.

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