Originalist Fiction as Constitutional Faith by Eric J. Segall

Professor Christopher Green’s respectful review of my book “Originalism as Faith” argues that my project “has one big virtue” but several “flaws.” He says that the book “properly points out elements of hypocrisy from originalists on the Court but draws the wrong lesson from that hypocrisy” because it “muddies” the “crucial distinctions . . . between Court and Constitution . . . and between application and meaning.” Cleverly titled, “Originalism as Faithfulness,” Professor Green contends that judicial and civic devotion to the document’s original meaning is a necessary component of faithfulness to constitutional law.

I appreciate Professor Green’s honest engagement with my book. He concedes or at least accepts my descriptive accounts of both the hypocrisy of self-styled originalist Supreme Court judges, and the ubiquity of the Court’s non-originalist constitutional law doctrines. As for my book’s alleged flaws, Professor Green’s arguments, rather than supporting his own originalist, oath-driven account of the Constitution, actually demonstrate that in litigated cases the document itself is little more than a “parchment barrier” with limited utility.

Constitutional law is not driven in any meaningful way by judicial, political or scholarly attention to text or history but rather by a complex interaction of politics, law, social movements, and cultural change. Professor Green’s faith in the importance of the oath judges take to uphold “this Constitution” (the one ratified by the people of 1787 as properly amended) reveals little about how constitutional law is made binding on the ground by varied political actors especially the United States Supreme Court. It is originalism as fiction.

Originalism v. Originalists

A substantial part of Originalism as Faith argues that neither the Supreme Court as an institution, nor any individual Supreme Court Justice, has ever consistently applied originalism as a method of constitutional interpretation. My book devotes three chapters to substantiating with abundant case law evidence the thesis set forth by, among many others, Professor David Strauss and Dean Erwin Chemerinsky, that constitutional law is mostly the aggregate of the Justices’ value preferences. Therefore, the idea that judges have used originalism to decide constitutional law cases is simply wrong as a descriptive matter.

Many law professors, judges, court commentators and media pundits still argue that originalism should be a determiner of case outcomes whether it has been or not. Professor Green contends that the misuse or non-use of a theory does not demonstrate that theory’s flaws. Maybe. But over two hundred years of non-originalist constitutional decision-making by our highest Court and our politicians suggests that the hope that originalism will play a major role in driving constitutional law is more utopian than realistic. Other than media pundits and religious zealots, my book suggests that this fanciful belief in originalism is held by people more as a matter of misplaced faith than intentional propaganda.

Professor Green largely agrees with my descriptive account or at least does not use his review to suggest otherwise. He writes that, “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.”

Despite this concession, Professor Green argues that 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.” He also contends, “Constitutional flaws do not justify tweaking constitutional meaning. Originalism as Faith does not . . . address the meaning of the Constitution itself, but only what the Supreme Court has said about it.”

By separating the Constitution from constitutional law, Professor Green obfuscates rather than clarifies the role the Constitution plays in our society, our lives, and our government. Most judges and politicians agree that the crystal-clear parts of the Constitution should be enforced as written. Our President must be, and always has been, at least 35 years old, and no state has been denied less than two senators, no matter how many of us wish that wasn’t so. However, we do not need originalism to understand unambiguous text. We just need to know how to read and agree that, where the Constitution admits only one plausible interpretation, public officials are bound by that interpretation. If Professor Green wants to ascribe all of that unity to the oath judges take to uphold “this Constitution,” I have no quarrel with that observation.

None of that, however, reveals anything serious about the role original meaning plays in constitutional interpretation (the subject of my book) because precise legal instructions do not need interpretation (or in the language of some originalists, construction). In the real world of constitutional litigation and political battles, where the Court imposes rules that are binding on the states, the other branches of the federal government, and the American people, originalism and textualism have played almost no role. Many of the Court’s most important doctrines, such as the equal protection limitation on the federal government, a color-blindness principle (espoused by some Justices) requiring strict scrutiny for race conscious preferences by all units of governments, and numerous federalism principles limiting the powers of Congress such as anti-commandeering, sovereign immunity for states from federal question suits brought by citizens of other states, and equal state sovereignty, are nowhere to be found in the Constitution’s text. These common law doctrines, of which there are many, explain why Professor Akhil Amar wrote a book called “America’s Unwritten Constitution,” Professor Larry Tribe authored a book called “The Invisible Constitution,” and Professor Strauss has devoted his career to describing the Court’s work product as “common law constitutionalism.” Constitutional law decisions that resolve deeply contested societal disputes come directly from the justices’ values, experiences, and beliefs—not the physical Constitution sitting in the National Archives in our nation’s Capitol.

Moreover, Professor Green seems to think that the “meaning” of the Constitution is something that can be discovered if only one works hard enough. He argues, “Segall’s repeated categorical claims that original meaning cannot resolve particular questions are unjustified in the absence of engagement with the relevant literature.” The claim is wrong, and the charge is unfair.

My book devotes substantial pages to numerous constitutional questions, such as whether the Second Amendment protects an individual right to own guns, or going back in time, to the issues raised by the infamous Dred Scott decision, and many other hard constitutional disputes in-between. Where Professor Green goes wrong in both his review of my book and his substantial academic work is his belief that vague constitutional phrases have a singular, or even persuasive, meaning which people of good faith can discern and then apply to unforeseen, difficult, and always changing factual questions.

The First Amendment’s original meaning cannot tell us whether mandatory union dues implicate strong free speech concerns. Article II of the Constitution does not have an original meaning that can answer the question whether the President may assassinate a United States citizen having lunch in Yemen who is a terrorist but no American court has so found. The Second Amendment’s original meaning cannot tell us whether states may ban weapons the founding fathers never contemplated. And the Fourteenth Amendment’s “meaning” cannot resolve hard issues regarding the inequality of people who were either disenfranchised when the Amendment was ratified (women) or whose sexual identities could not have been and were not publicly recognized by civil society at the time. These are difficult questions of creation, not interpretation, and they cannot be and are not persuasively answered by judges and politicians today based on historical evaluations, linguistic theories, or perusal of selective eighteenth-century dictionaries. In other words, these questions are much more about politics, values, and consequences than the Constitution’s original “meaning.”

Professor Green asserts that “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.” First, I am not “confining constitutional theory” to what judges do. My book is broader than that. But more importantly, it is Green who needs a theory as to why Georgia does not prohibit all abortions and Chicago does not prohibit all handguns, as both governments likely want to do. The answer has to be either that the decision-makers believe their oaths requires them to uphold what the Supreme Court has said about guns and abortion (not what the Constitution does or does not mean), or they believe that if they flagrantly violate what the Court rules, as the Governor of Arkansas once did regarding segregation, a more powerful force will be called in to enforce the Court’s rules. That is constitutionalism and constitutional law in real life, and it has little to do with originalism or oath-taking as intellectual theories.

In a new paper, Professor Mark Graber describes with great insight “The Unwritten Constitutions of the United States.” He observes the following:

We might imagine a constitutional universe in which the Constitution in the courts, the Constitution outside of the courts, and the Constitution in the archives have always been identical. That regime is not the United States. What constitutes fundamental law in the United States depends on both political place and time. . . . The conventions, statutes, and precedents that Americans imbue with constitutional significance change over time as do the constitutional politics that give life to written and unwritten constitutional law.

Graber’s account is accurate and rich. We follow the Constitution’s original meaning, assuming it is clear, when we think doing so is better than not doing so. But original meaning tells us little about the issues that actually divide us. Constitutionalism is not about meaning but instead, in Graber’s words, “an intricate blend of law and politics.” Contrary to Green’s focus on oaths and meaning, Graber accurately states that “constitutionalism in the United States cannot be understood in the absence of the unwritten and often changing constitutional and cultural commitments that for more than two hundred years have guided American constitutional development.” That constitutionalism, as my book demonstrates in great detail, involves a devotion by governmental officials to a dynamic and living constitutionalism, not one defined by the values and politics of people living centuries ago. Original meaning only matters when we decide for reasons separate from the text that we don’t want to change it, and that observation applies to both politicians and judges.

Application v. Meaning

Professor Green and I have debated in person, on Twitter, and in blogs and law reviews, the alleged difference between judges updating the meaning of vague constitutional texts and judges updating the application of vague constitutional texts. This debate is important because most forms of originalism today allow judges to discard the people’s original expected applications of constitutional meaning to discrete issues when, in the words of prominent originalist Larry Solum, “beliefs about facts change.”

Even Justice Gorsuch, in his recent book, described originalism as follows: “Originalists believe that the Constitution should be read in our time the same way it was read when adopted but also teaches only that the Constitution’s original meaning is fixed; meanwhile of course new applications of that meaning will arise with new developments and new technologies.” This form of originalism, I argued throughout my book, makes the theory indistinguishable from living constitutionalism and, in the service of transparency, judges and scholars who hold these views should say so.

In the real world of clients, lawyers, judges, politicians, and the effects of judicial decisions on the American people, there is no difference between judges saying that in 1868 the phrase “equal protection of the laws” meant segregated schools were constitutional, but in 1954 “equal protection of the laws” meant segregated schools were unconstitutional, and/or judges saying that the application of the imprecise equal protection principle to segregated schools changed from 1868 to 1954. There is no significance on the ground between those two conclusions.

Professor Green’s review, perhaps ironically, shows why any alleged differences between applications and meanings do not matter to constitutional law. He says that 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.”  I agree that judges should not change the Constitution’s “criterion” as Green is using that term.

He also says that “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.” I agree judges shouldn’t render constitutional text “obsolete.” However, these are both straw man arguments.

Virtually no judges—originalist, living constitutionalist, or those in between—believe that they are empowered to change, alter, discard, or create new constitutional principles that cannot in some way be connected back to the imprecise and broad aspirations spelled out in the constitutional text. Judges do reasonably disagree over which principles actually exist in the first place, such as whether the Second Amendment protects an individual’s right to own guns, or whether the Tenth Amendment suggests an anti-commandeering principle. Judges also routinely disagree over the application of broad principles such as freedom of speech, freedom of religion, and the right to the equal protection of the laws, to new and unforeseen societal conditions. However, disagreeing over such matters does not in any way distinguish living constitutionalist judges from originalist judges or indicate that there is any importance to the distinction Professor Green draws between application and meaning.

What could possibly distinguish originalism from living constitutionalism, and what did in fact separate the judges and scholars I label in my book the original originalists (like Professor Raul Berger and the early Judge Bork) from the living constitutionalists of the 1970s and 1980s, was the belief held by the original originalists that judges were required to enforce, where known, the original expected applications of vague principles to specific problems no matter how awful judges today feel about the consequences of doing so. For example, Justice Antonin Scalia once wrote the following about whether judges should apply heightened scrutiny to gender discrimination under the Fourteenth Amendment:

Certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.  Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up to date. All you need is a legislature and a ballot box.

Scalia’s historical analysis is, sadly, accurate, and that’s true whether we use original intent, original public meaning, or some blend of the two. The people who discussed, drafted, and ratified the Fourteenth Amendment did not believe in equal rights for women. Reflecting that prejudice, the Supreme Court in 1872 upheld Illinois’ ban on women being lawyers, and even as late as 1948, the Court upheld Michigan’s ban on women being bartenders unless their father owned the bar. Despite this strong evidence that the original meaning of the Fourteenth Amendment did not protect gender equality, however, Professor Solum said the following about why judges should interpret the Fourteenth Amendment today as guaranteeing equal rights for women:

In 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 [14th Amendment] 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. [Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.

This example, and many others such as the reach of the commerce clause and equality for gays and lesbians, demonstrate that we are not governed solely or even primarily by the document we call the Constitution sitting in Washington, D.C., but what the Supreme Court has said that document means. If those Justices are allowed, or in the words of Originalist scholar Ilya Somin required, to “update[e] the application of the Constitution’s fixed principles in light of new factual information,” then originalism has no meaning separate from pluralistic theories concerning the proper reading of the Constitution. In other words, if judges may consider “new factual information” to update the application of vague texts when that updating is inconsistent with what we know the original meaning of the text was at the time, originalism simply has no serious force.

Professor Green ends his review by saying that “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.”

The Constitution contains clear text that is as precise today as it was when it was originally expressed, and to understand how America is governed, we must look  at that text. But precious little of what we argue about in constitutional law is about those parts of the Constitution. To understand constitutional law, we must focus on the Supreme Court and the other political actors who impose coercive rules on the American people. And when we do that, we see that constitutional law issues have almost nothing to do with the original public meaning of imprecise texts ratified in 1787 or 1868 by people living in a world far different from our own, but everything to do with contestable value judgments made by judges and politicians who govern us today. To think otherwise is not only a misplaced article of faith, but also originalism as fiction.

Eric J. Segall is the Ashe Family Professor of Law at the Georgia State University College of Law.

 

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