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Originalism’s New Critics, Part 2: Faith

By: Ilan Wurman
January 16, 2019

esterday I critiqued Jonathan Gienapp’s new book, The Second Creation, in which he makes an innovative criticism of an old variety: originalism is self-refuting because it was unclear at the founding what the exact nature of the Constitution was, and whether it would be confined merely to its words. Georgia State law professor Eric Segall’s new book, Originalism as Faith, makes a more conventional—and for that reason more powerful—attack on originalism. The Constitution is written in such broad generalities—generalities like “due process,” “equal protection,” “cruel and unusual,” “unreasonable searches and seizures,” and “free exercise of religion”—that, Segall argues, even originalists must deploy personal policy preferences and value judgments in most contested constitutional cases. We’re all living constitutionalists, even if most of us pretend to be restrained by the Constitution’s text.

The criticism that originalism is merely a rationalization for conservative political results is not new. But in making his criticism, Segall is refreshingly honest about nonoriginalism. Most nonoriginalists claim they simply interpret the same text originalists interpret, but draw different conclusions based on their examination of contemporary understandings and practices. Only a few nonoriginalists—like Andrew Coan at the University of Arizona—acknowledge that nonoriginalism is about changing the Constitution over time. Segall, I take it, would agree with that characterization of nonoriginalism. More nonoriginalists should openly embrace that view; after all, that’s what they’re actually advocating.

Segall’s account of originalism in practice, and also of some modern originalists, is undeniably fair, thoughtful, and in many ways accurate. Some schools of originalism may very well be hard to distinguish from living constitutionalism. One maintains a distinction between “interpretation” and “construction”—interpretation dealing only with the meaning of the text, and construction dealing with the question of what to do when the meaning doesn’t answer the question at hand. If this distinction is real, and if meaning often leaves a large construction zone, then perhaps originalism can be hard to distinguish from living constitutionalism.

As I explain in my book, A Debt Against the Living: An Introduction to Originalism, originalism doesn’t mean we are bound by the original expected applications of any given constitutional provision. We are bound by what the framers wrote, not by how they thought what they wrote would apply to certain circumstances. We are not bound by their factual mistakes, let alone by their intentions as to factual circumstances that they didn’t foresee or of which they couldn’t possibly have conceived. Thus the provisions of the Constitution can apply to future circumstances unforeseen by the framers. “[V]irtually all living constitutionalists would agree” with this view, writes Segall, who calls me a “new originalist.” “Why do scholars like Wurman,” he then asks, “who quite obviously feel it is appropriate for judges to constantly update the applications of vague constitutional provisions to meet new conditions refer to themselves as Originalists?”

Segall doesn’t get my higher-order methodology wrong. Indeed, I don’t think he even gets wrong the higher-order methodologies of the other originalists he claims are indistinguishable from living constitutionalists. In my view, Segall is wrong because his lower-order premise is mistaken. The Constitution’s provisions are not the broad and vague generalities that Segall or advocates of a large construction zone believe. The problem with Segall’s argument is that the Constitution simply isn’t written in terms as broad as he thinks. If I am correct, then our disagreement dissolves. After all, if “equal protection” means nothing more nor less than “equality” subject to reasonable discrimination, and if “due process” is nothing but a delegation to future courts to decide what is “fair,” then I suppose there really is no daylight between our theories.

But those provisions are not broad generalities. Due process of law meant something far more specific than Segall seems to believe: no person could be deprived of life, liberty, or property without first having violated some preexisting law. Congress could not, by mere legislative decree, imprison someone or take one’s property and give it to someone else. The government could only deprive an individual of such rights pursuant to existing, known, and established laws. And any adjudication of a violation of those laws had to be conducted pursuant to a minimum of fundamental procedure. “Due process” is not a blank check for the Supreme Court to decide what is “fair.”

Similarly, equal protection is not about equality generally, but about equal protection of law. It is the flip side of due process: due process of law provides the conditions by which the government can deprive a subject of life, liberty, or property; protection of law is the protection government must afford its citizens against the interference with these rights by others. Protection of law consists in the protective and remedial services of government. When one subject harms another, the latter must be able to seek redress in court. This is what John Marshall meant when he said, in Marbury v. Madison, “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of Government is to afford that protection.”

In short, if the Constitution’s provisions are not nearly as broad as Segall maintains, then his thesis begins to fall apart, and the daylight between “interpretation” and “construction” also diminishes. To be sure, the Constitution is adaptable to future circumstances. That is its great genius. The framers knew times would change and yet the Constitution would have to endure. Our Constitution is remarkably adaptable at balancing self-government and liberty—the central task of free constitutions. It doesn’t say we have a right to express our thoughts with quill and parchment, to defend ourselves with muskets, or to be secure only in our horse-drawn carriages. All of its rights provisions can and do apply to changing circumstances, even if their meanings do not change. As for self-governing, the Constitution only insulates from democratic politics those rights most essential to free societies: freedom of speech, press, religion; the right to self-preservation; and due process rights. It leaves most other questions for democratic decision-making precisely because the framers knew we would evolve and progress over time. And, of course, for the most fundamental regime changes they gave us the amendment process—which is exactly how we’ve used it.

What the Constitution assuredly is not, is an open invitation for judges to import their own, extratextual values into the Constitution. There is still at least that much daylight between originalism and living constitutionalism.