Originalism as Myth - Eric Segall

 

A driving force in the ascendance of "originalism" as a mode of constitutional interpretation is that the document has achieved scriptural status, which enables you to put whatever meaning you want into it while claiming that you are following the command of ubermenschen.

So the anonymous op-ed pieces by Madison, Hamilton and Jay known as the Federalist Papers come to have the same authority as the Greek translations of the original Aramaic recollections attributed to men whose names are transliterated as Matthew, Mark, Luke, and John.  I find their message to be inspirational: particularly to love one's neighbor as one's self.  That message can, of course be abused, as by Stephen Stills and CSNY  who took it to mean "if you can't be with the one you love, love the one you're with".  And so it goes with constitutional interpretation.

Georgia State law professor Eric Segall addresses the originalism myth on Independence Day - itself encrusted in myth.  - GWC

Originalism as Myth - Eric Segall

By Eric Segall

Professor Stephanie Barclay is an associate Professor of Law at Notre Dame. She represents a newer, younger breed of originalist scholar and recently explained why she favors originalism in a longish op-ed in Utah's "longest-running news organization...and the state’s oldest continuously operating business." 

I've met Professor Barclay and she is a charming, smart, erudite academic who has written excellent scholarship about law and religion and other constitutional matters. So there is nothing personal when I say that her op-ed reflects accurately the current sorry state of dominant thought among many originalist academics. Her op-ed shows how originalism these days is chock full of myths.

The Title of Barclay's op-ed is "Why Constitutional Originalism is not Partisan: Originalism Teaches that the Constitution’s Meaning is Fixed at the Point it was Ratified." She begins by emphasizing the fixed meaning point:

When asked to explain [originalism], then-Supreme Court nominee Amy Coney Barrett explained, '...that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.'

Supreme Court Justice Neil M. Gorsuch wrote in Time magazine that the originalist school of thought 'seeks to conserve the meaning of the Constitution as it was written.'

Put another way, originalism teaches that the Constitution’s meaning is fixed at the point it was ratified by 'We the People.' And when that meaning can be discerned, a judge’s job is to faithfully apply that law to the case at hand. Originalists argue that this principle is necessary to have a 'government of laws, not of men.'

Virtually all originalists today agree that the one thing the many different families of originalism have in common is the bottom-line assumption that the meaning of the Constitution is fixed when ratified. But this bedrock premise is demonstrably false when it comes to virtually all constitutional litigation and even constitutional disputes outside the courts. As Professor Richard Fallon of Harvard Law School argues in an excellent recent paper, constitutional provisions simply do not "have a single, factually identifiable, original linguistic meaning."

What does it mean to say the meaning of the Constitution is fixed at ratification? It suggests that judges don't create constitutional law, they simply find it in the fixed original meaning of the Constitution's text. Sure, history is hard, most originalists concede, but at least it provides an anchor that will dissuade judges from imposing their own personal values on the rest of us. 

In her op-ed, Barclay quotes Justice Barrett, who said that she favors originalism because “Courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.” Barclay adds that "if an originalist judge likes and politically agrees with all of her rulings, that almost certainly means she’s not doing it right."

The problem with all this, as Fallon argues in his article, is that most constitutional problems involve imprecise phrases like “equal protection,” “due process,” “free exercise,” "freedom of speech," and “establishment.” These kinds of phrases don't have fixed meanings when applied to hard cases. That is why the New Originalists, in the words of Professor Ilan Wurman in his book on Originalism, "recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.” Similarly, in the words of originalist Mike Ramsey, "[w]hile original public meaning methodology must apply the fixed meaning of the constitutional term, changes in knowledge might change the application of that fixed meaning to particular facts."

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