By Eric Segall
One of the most cited articles about constitutional interpretation in recent years is the boldly named, "Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate," by the Godfather of New Originalism Professor Larry Solum. The piece is complex and much can and has been said about it by it other theorists but I want to focus (again) on one aspect of the article that I wrote about previously because that part of Professor Solum's article was also used by Professor Randy Barnett in his recent and interesting review of Adrian Vermeule's book "Common Good Constitutionalism."
First this post talks about Professor Solum and then Professor Barnett.
In his article, Professor Solum quoted my previous work talking about Professor Barnett's New Originalism. This is Professor Solum quoting me in his seminal article on the "Great Debate."
The problem with Barnett’s originalism is that constitutional litigation almost always involves vague constitutional provisions that have uncertain meanings in the context of our ever-changing society. When is the last time someone litigated the requirements that there be two Senators from every state, that the President be at least thirty-five, or that jury trials are required if more than twenty dollars are at stake? Most cases that end up in front of judges implicate vague phrases like 'equal protection,' 'due process,' 'establishment of religion,' and 'cruel and unusual punishment.'
Professor Solum then made the following concession:
From this premise, Professor Segall draws the conclusion that originalism may be indistinguishable from living constitutionalism. The key to understanding Professor Segall’s metalinguistic argument is identification of his crucial premise—which is that all, or almost all, constitutional issues that are actually litigated involve indeterminate constitutional provisions. If it were true that the original public meaning of the constitutional text was radically indeterminate in all litigated cases, then it would follow that the Constraint Principle would have no constraining force, hence originalism and living constitutionalism would not be meaningfully different.
Professor Solum then said that "the claim that the communicative content of all the actually litigated clauses is radically indeterminate is an empirical one. Redeeming that claim would require actual originalist work, employing a rigorous originalist methodology—something that neither Professor Segall nor any other critic of originalism of whom I am aware has done."
Similarly, Professor Barnett said the following responding to Vermeule's claim (virtually identical to mine) that the original meaning of the litigated Constitution is too "thin" to make originalism possible (at least without great deference): "But the claim that the text’s original meaning is this 'abstract' or 'thin' must be established with evidence, not merely stipulated. Like most non-originalist law professors, however, Vermeule is an armchair originalist who simply asserts, rather than proves, that this fixed constitutional meaning was highly abstract."
To understand why these claims by Professors Barnett and Solum are simply wrong we first must remember what is a core principle of New Originalism. Under the New Originalist approach, and in the [in]famous construction zone, judges have discretion to bring an almost endless array of post-ratification facts and changed cultural values into consideration when resolving constitutional cases, diluting any meaningful constraining effect of the text’s original meaning. For example, I previously quoted Professor Solum himself for the following proposition shared by most New Originalists:
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