Eric Segall (Georgia State University College of Law) has posted Originalism as Faith on SSRN. Here is the abstract:
This essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism."
The thesis of the essay is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists vastly overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions.
This essay contains three misinterpretations or misstatements regarding my views. The three statements corrected here are the only statements concerning my views in the draft. Here are the statements and the corrections:
"Other New Originalists such as Randy Barnett and Lawrence Solum agree with this notion that the meaning of vague constitutional provisions may evolve over time as facts and circumstances also change." My view is that the meaning of every constitutional provision, including but not limited to the vague, open-textured, and irreducibly ambiguous constitutional provisions, is fixed at the time each provision is framed and ratified. This is the Fixation Thesis, discussed in The Fixation Thesis: The Role of Historical Fact in Original Meaning. Since I have stated this position on many, many occasions in all of my writing about originalism over the course of the past decade, I do not know how I could have made this clearer. Although meaning is fixed, applications of meaning to fact does change--necessarily so, since facts themselves change over time. I have not taken a position on the question whether constitutional constructions expressed as doctrine should change over time, because I have not advanced a theory of constitutional construction. Some new originalists believe that the legal content of constitutional doctrine is fixed, others, e.g. Jack Balkin would (I believe) agree that in the "construction zone" such changes should occur. It seems likely that Professor Segall's error stems from his failure to distinguish meaning ("communicative content") from legal effect (including "legal content") and hence his failure to consider the implications of the interpretation-construction distinction for the statement he makes in his paper. The communicative content of vague or open-textured provisions is fixed, but underdeterminate in application--again, this point appears over and over again in my work.
Segall characterizes my politics as "moderate." I do not take political positions in my legal scholarship, and I will not do so on this occasion, but I believe that Segall's characterization is not accurate (or even close to accurate). I do not know the source of Segall's characterization: no citation is provided. I have never discussed my politics with Segall.
"Apparently, Randy Barnett’s and Lawrence Solum’s “New Originalism” and Professor Baude’s “inclusive originalism,” allow Supreme Court Justices to permit legislatures to ignore clear constitutional commands, and clear original expectations about those demands, if modern circumstances so require." This is not my view, and Segall provides no citation in support of this assertion. My view, expressed on multiple occasions and defended in depth in a work-in-progress, "The Constraint Principle," is that constitutional actors, including legislatures and the Justices of the Supreme Court, should not act in ways that are inconsistent with the communicative content of the constitutional text. Thus, no legislature should ignore clear constitutional commands. What Balkin calls "original expected applications" is a different matter. The communicative content of the text is binding, but expectations that are inconsistent with the text are certainly not binding from the perspective of the version of originalism that I articulate.
Professor Baude can speak for himself, but my sense is that Segall's representations of Baude's views should not be taken on face value and that readers should consult Baude's article and compare his position to Segall's representations of that position.
Finally, a comment on Segall's claim in the abstract that New Originalists "vastly overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions." Segall does not claim that this is my view, but I want to make it clear that in my view (and in the view of many other originalists), the Supreme Court has frequently been driven by politics and that the outcome of many Supreme Court decisions are likely inconsistent with original meaning. Originalism may be "our law" in the very careful sense of that claim articulated by Baude, but if it is, that does not entail the conclusion that every Supreme Court decision is justifiable on originalist grounds. To the extent that Segall characterizes Baude as making that claim, it is my belief that his characterization is not accurate. My own case for the Constraint Principle is explicitly normative.
With all that said, Segall's essay is certain stimulating and interesting. Recommended, with the qualifications noted above.
