The Death of Originalism?

Professor Eric Segall continues to battle originalism. It's part of his concern about abuse of judicial power. He argues the Supreme Court is "not a court." 

I find that silly. It's a certain type of court. But fine. 

Originalism is a false hope. It does not truly advance judicial restraint, which is at times deemed its biggest value. His new article (first link) notably shows how conservatives were no longer restrained once they truly took control of the Supreme Court.

Segall also enthusiastically shows how conservative justices do not show much concern about applying original understanding. He finds some definition of what that means. Originalism has various shades.

He loves to quote a strict test of judicial restraint applied by Alexander Hamilton. Fine. I just skimmed the grand Learned Hand biography, and by the end, he was even more restrained. 

But we don't live in the 1790s. Things changed. Courts have more power. The people overall agree they should. If you want more legislative supremacy, you are going to have to change THEM some. And, I don't think Segall has the chops to try to try. 

Originalism critics repeatedly appear to want us to do it the right way. His article focuses on how originalism died. That is, one more restrictive form of it (never truly implemented when it mattered) died. 

The "New Originalism" argues that judges have considerable flexibility. They should apply basically the general values of the Framers. 

Which they debate about, often in long articles about such and such provision. While leaving stuff out or getting stuff wrong. Thus, equal protection can include sexual equality. Or free speech covers much more. 

This is a more reasonable way. I also think (FWIW) it is the way the Framers figured it would work. 

They didn't think that fifty or more years in the future would understand specific constitutional concepts in the exact same way as they would. Experience and knowledge develop. The Framers sometimes realized they were wrong about things within a few years. 

Yes, this results in more flexibility. If you want judicial restraint, "what the Founders said" is of limited value. So, stop quoting Alexander Hamilton on the point so much. It encourages people to think originalism is okay. If you do it right.

The judges who apply the Constitution in this way are doing "law," though some originalists sanctimoniously think their way is the only way to do that. State court judges who are not originalists are still judges. 

The usual suspects, for instance, sneer when justices support the constitutional protection of same sex marriage. The Framers would never have supported it. Blah blah blah. They didn't have the knowledge, experience, and law that we have on the subject.

James Madison opposed the constitutionally of the Bank of the United States when he was in Congress. He acknowledged its constitutionality, given precedent, when he was president. 

Judges need to at least cosplay originalism, given the current control of the Supreme Court. But it is bullshit. It doesn't restrain more than the alternatives. 

As applied, it regularly is living constitutionalism by another name. It is not compelled by the document. The Founders didn't demand it. It's undemocratic and ignores all that we learned and experienced over the years. Not completely, of course, since judges are products of their time. But it somewhat tries to. 

Originalism will not restrain. A strict application of the past will provide judges with much power to strike down democratic actions. A stricter test will help somewhat, but judges will regularly assure themselves that the evidence is crystal clear. 

Judicial restraint has its place. Trying to ensure the current day governmental acts would satisfy our ancestors is a cockamamie way to go about it.  

Restraint will at times be a tough mistress. We are cheering on (with reason) some lower court judges restraining Trump. What would Segall's test do to many of those rulings? How about many of the great rulings of the past, some of which were 5-4?

It's a serious conversation to have, especially as we think long-term about dealing with our current Supreme Court. It has to be done without reliance on b.s. B.S., unfortunately, is quite alive. 

[A somewhat expanded version of this entry is here.]