Eric Segall: Of Judge Jackson, Originalism, and a Tale of Three Scholars- Dorf on Law

Dorf on Law: Of Judge Jackson, Originalism, and a Tale of Three Scholars

B Eric Segall

***The core arguments against originalism as a tool for judges are not complicated. Where the text is clear, such as the President must be at least 35 years old, judges simply need to be able to read (which is why cases involving clear constitutional language are almost never litigated). Where there is important but imprecise text with contested history, such as cases involving freedom of speech and religion, separation of powers, due process, and equal protection, no amount of historical investigation can shed enough light on the issues to determine results. Here are just a few examples: 

1) In what ways may the government regulate the internet?

2) Do women have the right to fight in combat?

3) Do transgender folks have a constitutional right to use public restrooms that correspond to their gender identity?

4) How does the fourth amendment apply to new and invasive technologies?

5) Since the ratifying generation of the Reconstruction Amendments did not and could not anticipate a segregated country for almost a century, what tools can we use today to make up for the pernicious behavior of white people in power?

6) May the government ban the private possession of lethal arms that the ratifying generations (1789 and 1868) could never have anticipated. If you think that question isn't truly hard, what about the government banning the private possession of nuclear weapons? If that seem like an easy question, then why not guns that can kill thousands in under an hour? Where is the line?

Although some historical details might shed a bit of light on these issues, none can provide enough clarity to lead to determinate results. Moreover, if originalism is our lodestar for constitutional analysis, briefs will of course focus on history, and motivated lawyers and their clients will present history through an advocacy lens, not an accurate one. At the end of the day, as Casey and Vermule recognize, personal beliefs and politics will determine which interpretations of history carry the day, not the history itself. And that lack of transparency is bad for all of us.

Constitutional law cases require judges to actually judge, not act as historians. Judges, of course, should be open to any and all relevant sources of information that shed light on the problem before them, including history. But inevitably the resolution of constitutional cases requires the balancing of values and then the judicial imposition of those values. There is no other way, and we should not pretend otherwise.