Do We Need Another Originalist Justice Like Scalia?

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The late Supreme Court Justice Antonin Scalia speaks in New York on September 17, 2012. Eric Segall writes that originalism is a marketing device for judges and politicians (like President-elect Trump, Ted Cruz and others) to use to mask personal judgments about what is best for society today. Brendan McDermid/reuters

This article first appeared on the Dorf on Law site.

In the months after Justice Antonin Scalia passed away last February, there was much discussion here and elsewhere about the future of originalism.

Of course, we didn't know then what we know now—that we have a president-elect who says that he will nominate justices in the Scalia mold. (Of course, who knows?)

Thus, it appears originalism may be back on the agenda. Therefore, it may be a good time to start (or for some of us to continue) to ask the question: Who is originalism really for?

When Judge Robert Bork and a number of legal academics like Raul Berger and Lino Graglia started advocating for originalism in the 1970s and 1980s, they were reacting to what they perceived to be the excessive judicial activism of the Warren court in cases like Roe v. Wade, Miranda v. Arizona and Baker v. Carr.

Their originalism came with a heavy presumption in favor of legislation whereby, in virtually all constitutional cases, the plaintiff has the burden of demonstrating that the law violates either clear constitutional text or uncontested history behind the text.

This theory is coherent, even if not necessarily persuasive, and if adopted in good faith by judges, it could dictate results in most constitutional litigation. It is also clear that Bork, Graglia and Berger were writing for judges, lawyers and citizens, not tenure committees, historians or philosophers.

We will never know if Bork would have actually implemented this type of deference as a Supreme Court justice. What we do know is, no modern justice has embraced this philosophy.

Although Scalia talked the talk before he became a justice, and continued the rhetoric off the court when he became a justice, his votes in constitutional litigation did not come with deference to originalist sources. As I've written before, Scalia (and Justice Clarence Thomas) frequently struck down laws where a deferential originalist would have had to uphold them.

These broad areas of constitutional law include litigation over takings, affirmative action, commandeering, sovereign immunity, standing, speech as conduct and commercial speech cases, among many others.

In response to my prior writings on this topic, several academic originalists have suggested that a "true" originalist could take the position that if originalist sources suggest striking down laws 51 percent to 49 percent, then judges possibly should do so, and that may have been Scalia's true "originalist" position.

Of course, in gay rights and abortion cases, Scalia explicitly adopted a deferential stance and criticized his colleagues strongly for not doing the same, so I don't think that position accurately describes Scalia's project.

Moreover, the original originalists would never have accepted such a judicial posture, and for good reasons. As I explain below, originalism without deference (the kind advocated by numerous so-called New Originalists) is absurd.

Imagine any number of difficult modern cases, such as whether the president may assassinate American citizens who are clearly terrorists but without any judicial process. Or whether women should have a constitutional right to terminate their pregnancies, or whether gays and lesbians have a legal right to marry.

A judge's coherent position would be to say to the plaintiffs in all three cases that you have the burden of demonstrating that clear text or history supports your positions, and since you can't show that, you lose.

Another coherent position for judges would be that, since society changes dramatically and neither clear text nor history forbids the plaintiffs' winning, we judges will do what we think is best, all things considered, and all three plaintiffs win.

What is an incoherent position is to suggest that we are going to canvass originalist sources, try to figure out the best we can what the people living in 1787 or 1868 thought about the problem, and do what the "objective meaning" of the text was or what those people intended the words at issue to mean.

For example, the people who wrote or ratified the 14th Amendment had views about women that are completely taboo today (I hope). Women couldn't vote, were excluded from many professions and were second-class citizens in many other ways under the law.

The issue of abortion, in 1868 or today, whether one is pro or anti, is wrapped up in balancing many aspects of a woman's individuality with the rights, if any, of the fetus. We don't know how people living in 1868 would balance those questions if they held our common assumptions about women, and there truly is no way to be 51 percent sure or even 80 percent sure.

The same is true for same-sex marriage and presidential power. The very concept of a homosexual person (as opposed to homosexual conduct) barely existed in 1868, so how much valuable information could people living at that time offer us?

Similarly, for better or worse, the nature of executive power, not to mention world conditions and technology, are so different today compared with 1787 that the people living then could not possibly offer much guidance on the question of drone strike executions of American citizens thought by the president to be terrorists.

Bork's originalism provided a rule for judges in such cases. The government wins, absent clear evidence of unconstitutionality as shown by text or history. But few modern originalists—including Scalia and Thomas, as well as 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 from 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 Barnett argues, originalism often "runs out" in hard cases, then the question again becomes who is originalism for.

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 Scalia and Thomas, then we must ask seriously who originalism is for.

Eric Segall is the Kathy and Lawrence Ashe professor of law at the College of Law at Georgia State University.