Eric Segall : The Year Originalism Became a Four-Letter Word - Dorf on Law

The conservative attack on expansive readings of constitutional rights - began, roughly, with Brown v. Board of Education in 1954.  The semi-sovereignty of the "states rights" slogan enabled the formerly slave states to enact a comprehensive system of racial apartheid.  Not only were schools segregated but movie theatres, water fountains, buses and trains.

The law as written was the rallying cry of the conservative attack on the expansive rights-jurisprudence of the Supreme Court when led by former California Governor Earl Warren,

But a key aide to another - a conservative - Governor of California in 1985 switched rhetorical horses.  As Ronald Reagan's Attorney General Meese railed against pornography and called for judges to adopt a "jurisprudence of original intent".  Originalism was taken up by the nascent conservative Federalist Society.  It has dominated conservative rhetoric about the las since then.  But now the conservatives are in the drivers seat, with a 6-3 majority of the Supreme Court.

A prominent Harvard law professor Adrian Vermeule has call for a "common good constitutionalism".  Drawn to Catholicism - like many other prominent conservatives - he has parted ways with his usual allies.  He is a defender of the administrative state (in Law & Leviathan with Obama's administrative law czar Cass Sunstein).  And more recently he has turned his fire on originalism, writing in The Atlantic that it is time to move Beyond Originalism:

The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

 Long time scourge of originalism Eric Segall takes a different approach after the landmark Dobbs decision returning abortion to the states, and more pointedly the New York State Rifle and Pistol Clubs case which overturned a 120 year old state gun licensing law.  In Segall's view the Scotus majority has already moved beyond originalism, asserting that ambiguous Constitutional provisions are to be construed by their text and their history post-adoption. 

And - like Neil Gorsuch has argued elsewhere - it is not for the Court to calculate the public interest.  Text and history are now called upon to solve originalism's problems.

- GWC 12/13/22

Dorf on Law: The Year Originalism Became a Four-Letter Word

 By Eric Segall

The Justices are done hearing cases until January so it is time to take stock in what has been a  monumentally important year at the Supreme Court. There's a lot to talk about but this post focuses on one significant point: this was the year originalism became a four-letter word. 

In June of this year, the Supreme Court of the United States issued four landmark decisions, all decided by 6-3 partisan votes. The Justices returned the issue of abortion to the states (and potentially Congress), dramatically enlarged gun rights, and weaponized the free exercise clause to require Maine to support parents of children in religious schools and to forbid a school district to punish a public-school football coach who on several occasions prayed at the fifty-yard line while he was still responsible for his students. All four Justices who identify as originalists joined (or authored) each decision, including Justice Alito, who used to mock originalism but now seems to embrace it.

The first two decisions canvassed history while the third and fourth barely mentioned the topic. None of the decisions, however, was originalist.

In October of this year, during the oral arguments in the Court’s two affirmative action cases it will decide this term, the so-called originalists seemed barely interested in the original meaning of the Constitution, and it is likely the June decision will barely mention it. Similarly, in December, there was not a single question about the first amendment’s original meaning in a huge case involving a wedding web designer’s refusal to sell those services to same-sex couples.

The Justices say they are originalists, but they simply are not. They should stop trying to deceive the public.

Let’s start with the Second Amendment case New York Pistol & Rifle, Ass’n v. Bruen, which may well be the least originalist Supreme Court opinion in history (a bold claim but bear with me). There is a substantial discussion of history in the opinion, but the Court’s actual mode of analysis could not be less originalist.

Justice Thomas said that the only legitimate methods of constitutional interpretation for judges to use are text and history and that courts should not balance public policy concerns against the weight of asserted rights. The founding fathers, however, simply did not treat rights that way. Constitutional rights were subject to restrictions if policy concerns were substantial enough. As Professor Jud Campbell has written, almost everyone at the Founding (and before) thought “rights were not a set of determinate legal privileges or immunities that the government  could not abridge. … Rights…could be restricted by law to promote the good of the society.”

At the very least, the framers understood that judges always had to balance the reason for the law at issue with the strength of the asserted claim. Yet, Justice Thomas, writing for all the originalists, specifically rejected this mode of analysis universally accepted when the people ratified our Constitution. As I said above, Bruen may well be the most anti-originalist opinion in history.

Dobbs...

KEEP READING