Eric Segall (Georgia State University College of Law) has posted The Concession that Dooms Originalism: A Response to Professor Lawrence Solum (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
This essay responds to a recent article by Professor Lawrence Solum in the Northwestern University Law Review which describes alleged differences between Originalism and Living Constitutionalism. I argue that even under Solum's own criteria, and his specific discussion of and critique of my work, there is no meaningful difference between Originalism and Living Constitutionalism, and this merger is important for current political and legal debates about the proper role for the Supreme Court in our system of government.
The original promise of Originalism was that only by combining strong judicial deference with the search for original intent or meaning could judges be meaningfully constrained when resolving many of our country’s most difficult social, political, and legal issues. As more and more Originalists drop the deference aspect of the theory, however, and tell judges to apply the original meaning of the constitutional text differently as relevant facts (and values) change, then judicial discretion will be maximized. Whereas most Living Constitutionalists concede judges inevitably have that discretion, Originalists today still often claim that only their theory can limit the power of runaway federal judges. That claim, however, is simply false given the wide swath of discretion judges have under current originalist theory to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified.
The only meaningful theory of constitutional interpretation that can in practice privilege the Constitution's original meaning is one which includes strong judicial deference to other government officials.
Recommended.
I would note that Segall's contention that "current originalist theory" gives judges "discretion" "to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified" does not accurately represent my understanding of my own views. The Constraint Principle requires judges to adhere to the original meaning (communicative content) of the constitutional text as was fixed by linguistic and contextual facts at the time each provision was drafted, framed, and ratified. And the Constraint Principle requires constitutional actors to engage in constitutional construction on the basis of the actual adjudicative and legislative facts at the time of application. There are important questions regarding the division of factfinding responsibility regarding legislative facts as between different officials (e.g., appellate and trial judges versus executive and legislative officials), but I believe Segall is simply wrong in his characterization of my view as allowing "discretion"--as understand the meaning of that term.
