Is Originalism a Theory? Is Living Constitutionalism?

Legal scholar Eric Segall argues originalism doesn't qualify as a constitutional theory because originalists disagree on too many things. His case is overstated. But if it's correct, the same criticism applies to living constitutionalism.

|The Volokh Conspiracy |

Originalists and living constitutionalists have been hammering away at each other for decades. But, up until recently, most living constitutionalists at least agreed that originalism qualifies as a theory of constitutional interpretation, even if a bad one. In an interesting recent blog post, however, legal scholar Eric Segall—author of a notable new book criticizing originalism—claims that originalism should not be considered a theory. Why not? Because originalists disagree on too many issues among themselves:

As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.

Professor Michael Paulsen, a noted national scholar and Originalist, believes that originalism must be exercised with strong deference to the decisions of non-judicial political actors….

Originalists like Randy Barnett, Ilya Somin, Ilya Shapiro, Jack Balkin, and Evan Bernick all reject substantial deference when it comes to originalist approaches to constitutional interpretation….

Some Originalists, such as Professors Will Baude and Steve Sachs, think Originalism is already our law. Most other originalists, however, such as [Randy] Barnett and Paulsen, argue that their own originalism theories are mostly normative, not descriptive….

It seems clear that, not only do originalists disagree with each other about whether originalism is normative, descriptive, or something in between, but some originalist scholars aren't sure themselves whether the theory is meant to describe what judges already do or what they ought to do.

Segall is right that originalists disagree amongst themselves on many issues. His list of these is not exhaustive. For example, originalists also disagree about whether the justification for originalism is intrinsic or instrumental, and whether the original meaning of the text should be understood in accordance with ordinary or expert contemporary understandings of the words.

At the same time, however, Segall is wrong to deny there are important areas of agreement among different types of originalists. As he himself notes, his originalist critics "say most Originalists agree with [Larry] Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges." Segall complains that this doesn't provide sufficient indication of how originalists would resolve "hard cases." But even if a methodology does not by itself settle all disputes about hard cases, it is still significant, because it provides a road map for how to go about resolving these issues. In truth, no constitutional theory can resolve cases by itself. Such resolution also requires understanding of relevant factual evidence, institutional constraints, and perhaps other factors, as well. For example, in my view, originalist methodology justifies striking down sex-discriminatory laws that most would have considered constitutional in 1868, because we now have better factual evidence on the capabilities of women. Much (though not all) of the disagreement among originalists turns on these kinds of issues.

As originalist legal thought has developed, internal disagreements among originalists have clearly grown. But that does not mean there is no longer any significant common ground among them. To use an admittedly imperfect analogy: over time, many internal disagreements have arisen between different types of Christians. They disagree amongst themselves on numerous theological questions, and also on practical moral and political issues, such as abortion and the death penalty. But there are still significant commonalities among Christians that separate them from adherents of other religions (and from atheists and agnostics). For example, Christians overwhelmingly agree on the crucial importance of Jesus Christ (even while differing on its exact nature), and on the idea that the Old and New Testaments contain some sort of divinely inspired moral guidance. Similarly, originalists agree on the importance of an unchanging original meaning of the Constitution, even as they differ greatly on exactly what that meaning is, and how courts (and others) should apply it.

Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme Court precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.

In sum, despite extensive internal disagreement, most originalists do agree on some important propositions. And originalism would still qualify as a theory even if there was no broad consensus on case outcomes among its advocates.

If disagreement on various theoretical issues and case outcomes does disqualify originalism from being a theory, the same applies to living constitutionalism. Like originalists, living constitutionalists also disagree among themselves on basic theoretical issues, on the extent to which courts should defer to the other branches of government, and on case outcomes. For example, living-constitutionalist opinion on judicial deference ranges from those who would do away with binding judicial review almost entirely (e.g.—Mark Tushnet and Larry Kramer) to those who advocate more robust judicial scrutiny of many types of legislation than exists today (e.g.—the late Ronald Dworkin). On basic theoretical premises, living constitutionalists disagree even more than originalists do. For example, there are huge differences between John Hart Ely's "representation-reinforcement" theory, David Strauss' "common law constitutionalism," Ronald Dworkin's moral approach to constitutional interpretation, and Bruce Ackerman's theory of "constitutional moments."

Segall suggests that living constitutionalism has more of a common core than originalism because "so-called living constitutionalists, such as Professors Philip Bobbit, Mike Dorf, Dick Fallon, and Larry Tribe, who argue for a pluralistic method of constitutional interpretation, are quite clearly advocating an approach they believe is both normative and descriptive. They argue that judges use well-recognized factors such as text, history, political practices, non-ratification era history, and evaluations of consequences to decide cases. In other words, they have a theory, it is well-thought out, and many non-originalists embrace it." In Segall's view, "[t]he same simply can't be said about originalism today."

These four scholars, of course, do not exhaust the range of living-constitution theories. Far from it. Moreover, while their theories are "both normative and descriptive" in the sense that they all believe that a "pluralistic" approach to interpretation is justified and that many real-world judges use a variety of methods, the scholars in question disagree among themselves about both specific constitutional issues, and how to weigh different modes of interpretation against each other when they conflict. They also, of course, all argue that the Supreme Court has gotten many important issues wrong and that the justices often use improper interpretive methodology, despite the fact that they in some sense make use of "pluralistic" interpretation. In that sense, their theories are not fully descriptive.

Despite these criticisms, there are two important kernels of truth in Segall's analysis. First, in many situations, it may make more sense to focus on specific originalist and living constitutionalist theories than on originalism or living constitutionalism generally. The specific theories provide more determinate guidance than the more general ones and are often what is really at the heart of disputes over particular legal doctrines.

Second the enormous diversity of both originalist and living-constitutionalist legal thought is a sign that constitutional theory remains a relatively immature field of study. We have far less agreement among experts than in more developed academic disciplines—not just "hard" sciences like physics, but even social sciences such as economics or political science. The same point applies to comparisons between constitutional law and at least some other fields in the legal academy, such as property, torts, or contracts, where there is greater consensus on what qualifies as a good argument and how competing views should be assessed.

This suggests we are still far from achieving the One True Constitutional Theory (assuming such a thing is even possible), and we should not be too wedded to our existing ideas. We should be on the lookout for ways to improve theory (including potentially radical revisions), and for doctrinal conclusions that can be justified from the standpoint of multiple theoretical perspectives, not just one. The degree of uncertainty in constitutional theory counsels against putting too many eggs in a single basket.

I tried to find some overlapping agreement on an important constitutional issue in my book on the Kelo case and constitutional property rights, where I explained how tighter limitations on takings are justifed on the basis of leading versions of both originalism and living constitutionalism. And I recognize that my instrumentalist approach to defending originalism implies that the latter theory might well eventually be superseded by something better, and that it may not be the right approach to all types of constitutions even now. Obviously, there is plenty of room for improvement over my efforts on both of these fronts.

UPDATE: I have edited the quotation from Eric Segall's post to conform to a change Eric himself made in his post.