October 24, 2019
Burying the Dead Hand: Taking the Original out of Originalism
Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law
I was honored to be asked to give a talk about Originalism at the American Constitution Society's National Lawyers Convening. My talk began with the well-known history of what I call the Original Originalism of Judge Robert Bork, Attorney General Ed Meese, and Professor Raoul Berger, among others. I then transitioned to the New Originalism and ended up with a lengthy list of cases where Justices Scalia and Thomas (and now Gorsuch) voted for non-originalist results. But by far and away what caused the most commotion in the room was my descriptive summary of the so-called "New Originalism."
These New Originalists have found an interesting way to address the persuasive "dead hand" critique of the Original Originalists. In the 1980s, many liberal law professors made the argument that judges today should not defer to the values and views of slave holders, segregationists, and sexists, and people who lived in a completely different country technologically. One example that clearly demonstrated this problem was the Court's decision in 1872 upholding Illinois' ban on women being attorneys which accurately reflected the prevailing public meaning of the Fourteenth Amendment which very few people thought prohibited official state discrimination based on gender.
Professor Lawrence Solum of Georgetown Law School, a renowned New Originalist, recently addressed this issue by saying the following (which drew an audible gasp from the lawyers at the convention):
“In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender…Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. [Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.”
The attorneys in the room quickly surmised that this form of constitutional interpretation is, of course, not originalist at all but sounds a lot like something Justice Brennan would have written, or Professor Michael Dorf or Dean Erwin Chemerinsky would advocate. Surely, they thought, this type of "originalism" must be an aberration, meant to address the unique problem of gender discrimination. But then I showed them what I think is the most important sentence in Ilan Wurman's book, An Introduction to Originalism: "Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.”
Again, I don't know any so-called Living Constitutionalist who would disagree with this sentence. I suggested to those assembled that the usual response to these quotes by originalists is that, well yes, we believe that the application of vague principles has to evolve when facts and circumstances change, but the meaning of the text is fixed and stays the same. To prove my point, I showed them these quotes from Justice Gorsuch's new book A Republic if You Can Keep It:
“Living constitutionalism comes in more varieties than ice cream flavors at Baskin-Robins. [These judge] share the conviction that the Constitution's meaning changes over time and that judges should determine what changes should be made based on external policy considerations…."
“Originalists believe that the Constitution should be read in our time the same way it was read when adopted but also teaches only that the Constitution's original meaning is fixed; meanwhile of course new applications of that meaning will arise with new developments and new technologies."
Of course, the folks in the room understood two important points. Living Constitutionalists do not think judges should just make up new principles out of thin air. After all, even Justice Douglas in Griswold v. Connecticut, which invalidated a state ban on contraceptives, relied on the "penumbras and emanations" of numerous constitutional provisions to justify the right to privacy which is no different in form from the Rehnquist Court's "reliance on the statement that "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms," to justify a non-textual principle of state sovereign immunity (agreed to by both Scalia and Thomas and most originalist scholars).
The second point is that in real life, in actual litigation, there is no difference between someone saying that the text of the Constitution needs to be updated to address changed facts and modern circumstances and saying that the principles in the text need to be updated. The result is exactly the same. And then I showed them what my friend, and self-identified Originalist scholar, Ilya Somin of the Antonin Scalia Law School has said:
“Nearly all originalists recognize, that [Originalism requires] updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.”
This is exactly the method so-called New Originalists use to avoid the dead hand problem. They know that our country has changed dramatically since 1787 and 1868 and that the Constitution's imprecise provisions that often get litigated cannot be viewed through the lens of people who lived so long ago in a world far, far away from our own.
The mystifying question is why these judges and scholars pretend otherwise by donning the label "originalist" and saying that they are bound by what Solum calls the Fixation and Constraint theses. These theses are that the meaning of the text is fixed at ratification and is binding on today's decision-makers. But it makes no difference if the text is fixed if its principles are not, and if today's decision-makers are allowed to "update" those principles because, in Solum's own words, "fixed original public meaning can give rise to different outcomes given changing beliefs about facts." Changing "beliefs" about facts.... welcome to the world of Living Constitutionalism, and the only way to avoid the ultimately persuasive "dead hand" critique of the Original Originalists.
In other words, what we have today among all judges and most originalist scholars (though there are certainly exceptions), is Original Public Meaning without the original, the public, or the meaning. What we don't have, is rule by the dead hand of the past, and thank goodness for that, but originalists should be more transparent about what guides how they conduct constitutional interpretation.