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Forthcoming 2019: Segall & Solum on Originalism and Living Constitutionalism
Forthcoming 2019
Forthcoming 2019 is a section from the Everyday Evidence Legal Blog that highlights recent papers from attorneys and professors from across the legal spectrum. These recent and soon-to-be publications offer readers a chance to see a wide range of issues from different legal fields.
Today’s Forthcoming 2019 features two articles:
Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate
Northwestern Law Review
Lawrence B. Solum
Abstract
The great debate between originalism and living constitutionalism ought to focus on the merits, including normative arguments for and against various forms of each theory. Frequently, however, discussion turns to disputes about definitions and concepts. This Essay investigates the conceptual structure of the great debate. It lays out a variety of issues that arise when theorists attempt to define “originalism” and “living constitutionalism” and proposes criteria for settling definitional disputes.
The Concession that Dooms Originalism: A Response to Professor Lawrence Solum
George Washington Law Review Arguendo
Eric J. Segall
Abstract
This essay responds to a recent article by Professor Lawrence Solum in the Northwestern University Law Review which describes alleged differences between Originalism and Living Constitutionalism. I argue that even under Solum's own criteria, and his specific discussion of and critique of my work, there is no meaningful difference between Originalism and Living Constitutionalism, and this merger is important for current political and legal debates about the proper role for the Supreme Court in our system of government.
The original promise of Originalism was that only by combining strong judicial deference with the search for original intent or meaning could judges be meaningfully constrained when resolving many of our country’s most difficult social, political, and legal issues. As more and more Originalists drop the deference aspect of the theory, however, and tell judges to apply the original meaning of the constitutional text differently as relevant facts (and values) change, then judicial discretion will be maximized. Whereas most Living Constitutionalists concede judges inevitably have that discretion, Originalists today still often claim that only their theory can limit the power of runaway federal judges. That claim, however, is simply false given the wide swath of discretion judges have under current originalist theory to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified.
The only meaningful theory of constitutional interpretation that can in practice privilege the Constitution's original meaning is one which includes strong judicial deference to other government officials.
Click here for Solum's article.
Click here for Segall's article.