Eric Segall has a post entitled, "Who Is Originalism For," on the Dorf on Law blog. Towards the end, he writes:
Judge Bork's originalism provided a rule for judges in [in cases in which the meaning of the Constitution is unclear.] The government wins absent clear evidence of unconstitutionality as shown by text or history. But few modern originalists, including Justices Scalia and Thomas, as well Professors Randy Barnett, Jack Balkin, and Will Baude (all self-styled originalists), take that position. Moreover, as far as I can tell, Professor Larry Solum's work does not offer this kind of deference either.
Solum and Barnett might respond that I am confusing the semantic meaning of the text with the legal meaning. They have argued that what the words meant to the people at the time is a very different question than how judges should apply those words to current modern problems, which requires what they call "constitutional construction." The problem is that as I, and many other people have observed, this dichotomy between semantic and legal meaning renders originalism indistinguishable from living constitutionalism. Moreover, if, as Randy argues, originalism often "runs out" in hard cases, then the question again becomes who is originalism for?
It is not clear what Segall is actually claiming here. Recall that the interpretation-construction distinction is the distinction between the meaning (communicative content) of the text ("interpretation") and the legal effect given to the text ("construction"). In cases in which the communicative content is clear, consistent, and complete, it can fully determine the content of constitutional law and the decision of constitutional cases. Originalists characteristically claim that clear communicative content is binding, and hence that officials (including judges) should act in a way that is consistent with that content. I call this normative idea, the Constraint Principle.
The problem that Segall identifies arises when the constitutional text underdetermines legal effect. This could happen for a variety of reasons: vagueness and open texture, irreducible ambiguity (not resolved by context), gaps, contradictions, and so forth. I call these areas of underdeterminacy "construction zones" to signify that some rule of construction must provide constitutional content to resolve such cases. One such rule would be a default rule requiring deference: the default rules approach has been developed by Gary Lawson and Michael Paulsen, although they differ with each other on the precise nature of the default rules that are appropriate.
How significant are the construction zones? That question cannot be answered a priori in the abstract. It depends on our interpretation of particular constitutional provisions. Tentatively, I think it is likely that most of the hard-wired constitution (the basic structural provisions) clear except at the margins. This is of enormous significance, since the hard-wired constitution is clearly the most important part–it determines the basic structure for governance. Thus, the original meaning of the bicameral legislature, the veto, the apportionment of the Senate and House, and a single President allows the government to function (at least up to now). Moreover, a number of other provisions resolve a vast number of potential issues–if their original meaning were observed. For example, the original meaning Seventh Amendment right to jury trial in civil cases resolves most of the potential disputes, even though the Supreme Court has sometimes departed from that meaning and there are some questions with respect to which the original meaning is underdeterminate.
And I suspect that some provisions that are now interpreted (by nonoriginalists) as open textured in fact provide clear bright-line rules. If the living constitutionalist approach is followed "due process of law" might mean "fair process of law," but if the original meaning is the law-of-the-land interpretation advanced by Justice Black, then the open textured "fair process" becomes the almost fully determinate "process provided by positive law." In other words, the extent to which there are construction zones depends on the meaning of particular clauses.
But it seems quite likely that there are at least some areas of constitutional law where the public meaning of the constitutional text underdetermines legal effect. Does the existence of a significant set of construction zones imply that originalism is indistinguishable from living constitutionalism? The answer to this question is obvious: "no." First, the original meaning is not radically indeterminate–it is moderately underdeterminate at best. Second, even with respect to those provisions that are underdeterminate, the text rules out some of the possible answers as inconsistent with the original meaning: this is H.L.A. Hart's idea of the "core" and "penumbra." Third, it is not necessarily the case that originalists will adopt the same approaches to constitutional construction in the zones of underdeterminacy that living constitutionalists use with respect to the whole text: this third point requires that we examine the various forms of living constitutionalism and the options for originalist constitutional construction–a task beyond the scope of a blog post. Nonetheless, we should observe that originalists will need to adopt a theory of constitutional construction in the zone of underdeterminacy that is consistent with the justification they offer for originalism itself. For example, if originalism is justified because living constitutionalism undermines the rule of law by creating an unconstrained Supreme Court, then the correlative approach to constitutional construction will not be: "Supreme Court do whatever you want if the text is underdeterminate." A rule of law approach to constitutional construction might emphasize respect for baseline legal norms and a strong doctrine of stare decisis. Or one might adopt the "presumption of liberty approach" advocated by my colleague, Randy Barnett.
From the erroneous conclusion that that interpretation-construction distinction implies the equivalence of originalism and living constitutionalism, Segall moves to the following remarkable passage:
The sad answer, I think, is that originalism is a marketing device for judges and politicians (like the President-elect, Ted Cruz, and others) to use to mask personal judgments about what is best for society today. For scholars, it is a means of discussing constitutional law in a way that appears academic and theoretical but at the end of the day doesn't describe accurately how judges decide cases or likely ever will decide cases. I will have more to say about both of those claims in future blog posts, articles, and my book Originalism as Faith. But for now, it is enough to suggest that originalism without deference is absurd, and if I'm right that Supreme Court Justices (life-tenured government officials who have enormous power) will inevitably do what they think is best, as has been the case with Justice Scalia and Thomas, then we must ask seriously who is originalism for?
Of course, originalism has never been offered as a descriptive theory. Can anyone even imagine that Justice Scalia's point about originalism was that the Warren Court and his mid-1980s colleagues were all originalists and that he simply wanted to "join the party"?
Whether originalism has legs is a different question. I will say this: in the early 80s when I first encountered originalism, the notion that someday Supreme Court Justices would write originalist decisions was patently absurd. Two weeks ago, I would have said that it was almost impossible that the Supreme Court would have more than one (maybe two if you count Alito) originalist Justice in the next few years–perhaps in decades. As a practical matter, the originalist project requires originalist Justices on the Supreme Court. And that depends on the appointments process. And that depends on politics. And not just politics, but the accidents of history as well.
But even if it were the case that originalism will never gain the ascendency, that does not entail the conclusion that originalism as a normative constitutional theory is worthless. Normative theories can have power even in dissent. My wonderful colleague Michael Seidman's project of making the case for transparent radical constitutional skepticism is unlikely to gain traction on the Supreme Court. If the appointment of even one originalist Supreme Court Justice was very unlikely, then the appointment of a Justice who says, "The constitution is just a symbol like the flag; I will disregard it when I decide constitutional cases," is more than just a black swan-more like a flock of black swans who can dance the Charleston while they sing Leonard Cohen songs. But the extreme unlikelihood of the public embrace of radical constitutional skepticism does not make the skeptic's project unimportant. Questions about what we should do are very important–even when we do what we should not. Radical perspectives can illuminate and deepen debates that otherwise are shallow. There is nothing like a radical idea to shake up the echo chamber of received opinion.
I look forward to reading Segall's book. It seems evident that he has a long row to hoe.