Ar Dorf on Law, Eric Segall: Originalism Without History: A Response to Professor Randy Barnett (responding to Professor Barnett's comments on the Kvanaugh hearings, noted here). From the introduction:
At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"
These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.
Kavanaugh, not surprisingly, ducked these questions by saying that for "most … constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.
Barnett's response was different:
[J]udges should not be doing the historical research that originalism requires… this research should be done by constitutional scholars–inside and outside of the law schools–whose evidence and conclusions can be challenged by other scholars in advance of any litigation. Then judges can select the arguments they find most persuasive, as they do when they evaluate competing expert testimony. Indeed, in Heller both Justices Scalia and Stevens relied on outside scholarship by both historians and legal scholars for the sources they mustered in defense of their conclusions.
Professor Segall objects:
This is all just a little surreal. Are constitutional law scholars supposed to ascertain the legal meanings of words used in 1787 without immersing themselves into the historical practices of the time? More importantly, "it is originalism’s reliance on the past that makes it authoritatively attractive to the bench and bar." Imagine if Justice Thomas were to announce that "originalism isn't really about historical accuracy which is why my law clerks and I rely on it."
The reality, of course, is that originalism as practiced by judges, lawyers, and law professors is not and cannot be about gleaning historical meaning because 1) most are not trained to do so, 2) the constitutional text is too vague and its history to contested to justify firm or even persuasive conclusions about most modern day problems, 3) the overlay of hundreds of years of Court decisions has changed the meaning or the application of the imprecise text that leads to real cases; and 4) lawyers are trained as advocates, not impartial recounters of historical meanings or events.
If a case happens to implicate clear history then of course the original meaning of the text should be one factor in judicial consideration of the issues. But these cases are few and far between. Moreover, the history has to be accurate all things considered, not just in the parsing of words. As Patrick Charles has observed, "by accepting the premise that originalists only need to be familiar with a 'subspecialty of history' or the 'investigation of legal meanings,' originalism fails by facilitating mythmaking more so than fact-finding."
Indeed. Originalism is substantially myth, or maybe more accurately, an article of faith.
Unsurprisingly (since my scholarship is mostly about investigating the historical meaning of parts of the Constitution) I lean toward Professor Barnett's view — though at times I think the inquiry is quite difficult, and that legal scholars can and should learn much from historical accounts.
It's important to see, however, that Professor Segall's attack (and others like it) is not really an attack on originalism but an attack on conventional constitutional interpretation. As non-originalist Professor Mitchell Berman of the University of Pennsylvania has written (in The Challenge of Originalism, p. 250), "Virtually nobody denies that the original meaning of a constitutional provision is always relevant to the interpretive task, and few theories deny that it is frequently a weighty consideration." Or to quote Berkeley Law Professor Amanda Tyler, from her magnificent history of the habeas suspension clause, "Although legal jurists and scholars argue over whether history should be the decisive factor in ascertaining the meaning and application of the Constitution, no one seriously questions that history is deeply relevant to the debate." (Habeas Corpus in Wartime, pp. 8-9). Multiple contemporary controversies, from (to pick one area making recent headlines) the President's duties under the emoluments clause to the President's control over investigation and prosecution to the meaning of "high Crimes and Misdemeanors" in the impeachment clause to the President's power have been and are being debated in large part in terms of the original meaning of the relevant clauses. Countless essays, articles and books have been written regarding the historical meaning of constitutional clauses or of the Constitution more broadly — not just by originalists but by people from all parts of the political spectrum, by people representing a wide range of interpretive theories, and by people who are simply interested in the historical answers.
What distinguishes originalists from conventional legal scholars is not that they think the Constitution's original meaning can be usefully investigated by legal scholars, advocates and judges. It is that they think the Constitution's original meaning, if satisfactorily identified, should be decisive (or at least, decisive absent directly contrary precedent) in modern adjudication. Professors Tyler and Berman both make this point; as Professor Berman writes (p. 250): "What makes originalism so controversial is precisely the position it takes on what I have called in other work the dimension of interpretive strength. Non-originalists do not deny that the original meaning constitutes a reason, possibly even a weighty reason, in favor of a given contemporary interpretation; they only deny the originalist contention that original meaning (or the like) is a conclusive or exclusive reason to a adopt a particular interpretation."
In sum, Professor Segall's objection is property directed not at originalism but at the wider legal culture of viewing the Constitution at least in part through a historical lens.
Posted at 6:45 AM